W and E (Habitual Residence), Re
| Judge | Mr Justice Cobb |
| Neutral Citation | [2024] EWHC 2596 (Fam) |
| Date | 15 October 2024 |
| Year | 2024 |
| Court | Family Division |
| Counsel | Tadhgh Barwell O’connor,Jonathan Evans |
Neutral Citation Number: [2024] EWHC 2596 (Fam)
Case No: FD24P00227
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 15/10/2024
Before :
THE HONOURABLE MR JUSTICE COBB
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Between :
S Applicant
- and -
K Respondent
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Re W and E (Habitual Residence)
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Tadhgh Barwell O’Connor (instructed by Moore Barlow LLP) for the Applicant
Jonathan Evans (instructed by Brethertons LLP) for the Respondent
Hearing dates: 8-9 October 2024
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Approved Judgment
This judgment was handed down remotely at 10.30am on 15 October 2024 by circulation to
the parties or their representatives by e-mail and by release to the National Archives.
.............................
THE HONOURABLE MR JUSTICE COBB
This judgment was delivered in private. The judge has given leave for this version of the
judgment to be published on condition that (irrespective of what is contained in the judgment)
in any published version of the judgment the anonymity of the children and members of their
family must be strictly preserved. All persons, including representatives of the media, must
ensure that this condition is strictly complied with. Failure to do so will be a contempt of
court.
THE HONOURABLE MR JUSTICE COBB
Approved Judgment
Re W and E (Habitual Residence)
The Honourable Mr Justice Cobb :
Introduction
1. By this application, the Applicant father (S) seeks the return of his two children, who
I shall refer to as Will and Ed (not their actual names), to New Zealand. Will is 12y
4m, and Ed is 10y 9m. The application is brought under the 1980 Hague Convention
on The Civil Aspects of International Child Abduction (“the 1980 Hague
Convention”) as incorporated by Schedule 1 of the Child Abduction and Custody Act
1985.
2. The application is opposed by the Respondent mother (K); she asserts that:
i) at the time of the alleged retention, the children were habitually resident in
England;
ii) the children object to being returned, and they have acquired an age and
degree of maturity at which it would be appropriate to take account of their
views;
iii) a return of the children would expose them to a grave risk of physical or
psychological harm, or would otherwise place them in an intolerable situation.
The argument at (iii) above is founded on the assertion that the mother and children
have experienced domestic abuse in New Zealand, and that the protective measures
offered by the father will not adequately mitigate the risk of this continuing, and that
the mother’s mental ill-health would not withstand a return to New Zealand.
3. There is no dispute that at all material times, the father had rights of custody for the
boys, and that he was exercising those rights.
4. For the purposes of determining this application, I have read the sizeable bundle of
documents filed in the proceedings; notable among those documents are:
i) Two statements of the parties with extensive exhibits;
ii) The Cafcass officer’s report, prepared by Ms Catherine Callaghan dated 27
August 2024;
iii) A report from Dr McClintock, consultant psychiatrist, dated 26 September
2024.
I also heard brief oral evidence of Ms Callaghan, and from Dr. McClintock. I have
been greatly assisted by the able advocacy and presentation of the parties’ respective
cases, by Mr Barwell O’Connor and Mr Evans. The mother was present in court, the
father nobly participated by video-link notwithstanding that the hearing took place
through the middle of his night.
5. A few days’ prior to the final hearing, the mother issued a C2 application seeking the
court’s approval for the children to be interviewed once again by Ms Callaghan. The
mother asserted that the children “wanted to give more information to Cafcass”; the
children had seen Ms Callaghan on 15 August 2024. The father opposed the
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5 cases
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M v A
...Parties to Appeal) [2015] EWCA Civ 26. 82. The applicable principles in Re M were helpfully summarised by Cobb J in Re W and E (Habitual Residence) [2024] EWHC 2596 at para 50: “i) It is appropriate to break down the exercise into two parts – the "gateway stage" and the discretion stage ii)......
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EF and GH (Children) (1980 Hague Child Abduction Convention), Re
...requires that the wronged parent be held to have acquiesced.” 3.7. Harm / Intolerability 32. In the recent case of Re W and E (Habitual Residence) [2024] EWHC 2596, Cobb J provided a helpful distillation of the authorities and a summary of the applicable principles. That case also involved ......
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M v B
...Parties to Appeal) [2015] EWCA Civ 26. 128. The applicable principles in Re M were helpfully summarised by Cobb J in Re W and E (Habitual Residence) [2024] EWHC 2596 at para 50: “i) It is appropriate to break down the exercise into two parts – the "gateway stage" and the discretion stage Pa......
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AF v AM
...that I must adopt. For the mother, Mr Evans relied on the summary of the law contained in the decision of Cobb J in W & E (Habitual Residence) [2024] EWHC 2596 (Fam) at [66] 16 Judgment Approved by the Court for Handing Down AF v AM - Re D (A Child)(Abduction: Article and [68]-[72] whilst f......
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