• Ceylan Kahya

Judge was wrong to decide child should be returned to father

Judge was wrong to decide child should be returned to father

A judge had been wrong to decide that a 22-month-old child should be returned to his father's care

under the Hague Convention on the Civil Aspects of International Child Abduction.

That was the decision of the Court of Appeal in a case involving a Norwegian father and a British mother.

They met in London, but in February 2019, they moved to Norway with the mother's older child from a previous relationship.

At the time, the mother was pregnant and gave birth to a boy, referred to in court as A-M, in Norway. By July 2020, the mother was pregnant again and left Norway with her older child and A-M, who was then aged one.

She accepted that A-M was habitually resident in Norway and that his removal was therefore wrongful under the Hague Convention.

In September 2020, the father applied for A-M's return. The mother filed statements containing detailed allegations of verbal and physical abuse, which she claimed to have been subjected to by the father from the time they began living in Norway until she left.

Her statements also contained some evidence of threats to the children.

The judge granted the father’s application after finding that the mother had failed to establish a defence under the Convention that there was a grave risk that A-M's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.

The Court of Appeal has overturned that decision. It held that the judge appeared not to have considered all the evidence, and his judgment contained no analysis of whether, if what the mother said was true, the nature, detail and substance of her evidence established or might establish a grave risk to the child.

The judge rightly asked himself whether the mother's allegations, if true, would be sufficient to create a grave risk of harm. However, he failed to provide a clear answer.

There were parts of the judgment that suggested that he had considered the mother's allegations and found them wanting, but there were other parts which made it plain that he did not or could not discount the possibility that the allegations gave rise to a risk.

His evaluation failed to address the question which he posed himself and he had erred in law.

The matter would be remitted for a further hearing, if possible before a judge of the Family Division.

If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 02080040065, by email at hello@southgate.co.uk or using the form below.

Case Citations: A-M (A Child) (1980 Hague Convention), Re Court of Appeal (Civil Division) [2021] EWCA Civ 998 - Moylan LJ; Coulson LJ; Nugee LJ

The contents of this article are general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.

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