A woman facing a jail sentence has won her appeal to prevent her daughter being returned to her father.
The case involved a married couple who had been permanently based in Italy.
The marriage broke down and the mother took the child to live elsewhere in Italy without the father's consent. That unlawful removal resulted in court proceedings and the mother was sentenced to 12 months' imprisonment in Italy, which she still had to serve.
The Italian court awarded the parents joint custody, made shared residence and contact arrangements, and ordered the father to pay child maintenance.
Subsequently, the mother removed the daughter to England and enrolled her in school. The father applied for a return order. The mother confirmed that, if the order were granted, she too would return to Italy.
The judge concluded that the fact that the mother might be required to serve the custodial sentence did not breach the requirements of The Hague Convention on the Civil Aspects of International Child Abduction 1980 and so the daughter should therefore be returned to Italy.
The Court of Appeal has overturned that decision. It held that the judge should have examined the situation the child would face on her return to Italy, including what would happen when the mother and child got off the plane, whether the mother would be arrested, where they would live and what funds they would live on. The judge had no answers to those questions.
He should have also considered whether the daughter’s enforced return would increase the likelihood that she would sustain further serious psychological harm, particularly if her mother was required to serve any part of her custodial sentence. It was possible that she would be left in the sole care of her father, with whom she had not lived for several years and about whom she had come to have negative views.
All those matters required further investigation and so the case was remitted to a different judge for reconsideration.
Please contact our expert legal team on 0208 004 0065 or using the contact form below for more information about the issues raised in this article or any area of divorce or family law.
(Case citations:  EWCA Civ 1677RE / GP (A CHILD) (2017) / CA (Civ Div) (King LJ, Lindblom LJ, Henderson LJ)