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Case Name
SKJ v SLJ [2023] EWHC 246
INCADAT reference
HC/E/UKe 1706
Court
UNITED KINGDOM - ENGLAND AND WALES
High Court of Justice, Family Division
First Instance
Mrs Justice Morgan
States involved
UNITED STATES OF AMERICA
UNITED KINGDOM - ENGLAND AND WALES
Decision
8 February 2023
Final
Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Objections of the Child to a Return - Art. 13(2)
Return refused
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Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 SC; Uhd v McKay [2019] EWHC 1239; Re S (A Child) (Abduction: Rights of Custody)[2012] UKSC 10; Re C (Children) (Abduction: Article 13(b) [2018] EWCA Civ 2834; B (A Child ) (Abduction: Article 13 (b)) 2020 EWCA Civ 1057; A (Child Abduction : Article 13(b))2021 EWCA Civ 328; Z v D (ART 13: REFUSAL OF RETURN ORDER) [2020] EWHC 1857 (Fam)
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SUMMARY
Summary available in
EN
Facts
The parents were both British nationals. They married in 2008 and had two children born in the UK, age 11 and 9 at the time of the hearing. In 2014 the family moved to Texas.
The Mother took the children to England for a holiday between 4-20 March 2022 but on 10 March she informed the Father that they would not be returning to the USA.
The Father filed an application under the 1980 Hague Abduction Convention for the return of the children to the USA.
The Mother argued that the children objected to returning, that there was a grave risk of harm/intolerability should they be returned, and that Article 20 applied as Texas did not have a relocation jurisdiction.
Ruling
Return refused. The impact of a return on the Mother’s mental health would place the children in an intolerable situation.
Grounds
Grave Risk - Art. 13(1)(b)
The Mother had a longstanding and significant mental health history. She argued that a return to the US would be detrimental to her mental health which would have a knock-on effect on the children.
The Judge expressed some unease with the argument, noting that it should not be thought that simply claiming the effect on the mental health of a parent is such that no protective measures could be put in place to ensure their ability to care for the child.
However, on the specific facts of the case the Judge exercised her discretion not to order a return. In this case the impact on the mother’s mental health was not unknown and speculative but a well-documented history.
Human Rights - Art. 20
The Mother argued that a return to the US would be contrary to Article 20 as in Texas there was no jurisdiction by which she could make an application for permission to relocate with the children to England. Relying on expert evidence, the Judge did not agree with this view.
Furthermore, the judge made clear that even if the mother's prospects of obtaining a relocation order were now damaged by the wrongful removal, the mother could not then rely on her own bad behavior to say this avenue was not open to her and invoke Article 20.
Objections of the Child to a Return - Art. 13(2)
While the children may have voiced preferences to stay in England, this did not amount to an objection to return within the meaning of Article 13(2).