Reino Unido - Inglaterra y Gales
Tribunal de Apelaciones
Reino Unido - Inglaterra y Gales
23 February 2021
Cuestiones procesales | Interpretación del Convenio
Apelación concedida, restitución ordenada
The mother is a British national and the father is an Italian national. They had a child, born in England, in 2008. The child grew up in Italy and routinely travelled to England with the mother to visit his grandparents. When the child was registered in England, the father was not named as father on the birth certificate. When the family moved to Italy, the parents signed a declaration with Italian local authorities in recognition of the father’s paternity.
In June 2019 the mother and the child travelled to England, and the father expected their return in August. The mother decided to remain in England with the child after the summer. The father travelled to England twice to discuss the situation without success. He found out that the mother had enrolled the child in school in England.
In February 2020, the father travelled with the child to Italy with the mother’s consent during the school holidays. Another trip was planned for April 2020, but the mother withdrew her consent, and an ex-parte application was made to prevent the father from removing the child. Soon thereafter, the father signed an application to the Italian Central Authority for the child's return to Italy under the 1980 Hague Convention.
The mother resisted the application and declared that she would not return to Italy even under a return order. The mother claimed that the father did not have custody rights, that he acquiesced to the child’s removal and retention in England, and that the child would be at grave risk of harm if returned to Italy.
A CAFCASS report was produced on the child’s wishes and feelings in respect of a return to Italy and concluded that the child did not feel strongly about either option but wherever he lived he wanted to see both his parents.
In September 2020 an order was made for the child to return to Italy. Following the order the mother claimed that the child was shocked and reluctant to return. She applied to stay the return alleging that there had been a change of circumstances. The court held that the return order should be stayed to enable CAFCASS to conduct a second interview with the child. The second CAFCASS report stated that the child had decided that on balance he would prefer to remain in England with his mother.
The court allowed the appeal and ordered the child’s return to Italy. The situation did not amount to a “fundamental change in circumstances” required in order to set aside a decision under the 1980 Convention.
There was no need to for the child to be joined as a party to proceedings as the CAFCASS officer had appropriate skills to make his voice heard. Furthermore, it was clear that the mother had placed emotional pressure on the child and so his instructions to the legal team may not represent his authentic voice. The court reaffirmed that this was not because the child’s views were not important, but because his views and interests had been very fully provided to the court through the CAFCASS report and the submissions made by the parents.
The Court found that it had authority to set aside orders under the 1980 Convention where there had been a fundamental change of circumstances which undermines the basis on which the order was made. The Court noted that the approach to be taken in such cases and the threshold to be applied were not entirely clear, but in this case the change in circumstances was not substantial enough.
Both CAFCASS reports revealed a high level of indecision on the part of the child and his change of opinion must be placed in the context of there being a considerable degree of emotional pressure placed on him by the mother following the original court order.
Author: Matheus Ferreira Gois Fontes and Victoria Stephens