Buscador de jurisprudencia

The parents met in France. The mother is British and the father Algerian. They married in 2015 and had three children. At the time of the appeal hearing the eldest child was 7 and the youngest 2. The children lived all of their lives in France, visiting England from time to time, until October 2023 when the mother brought them to England.

The mother claimed that the father knew they planned to stay in England, the father claimed that he thought they would return in two weeks. The father made an application under the 1980 Convention for the return of the children to France. 

At first instance the application for return was refused. The father appealed this decision, in particular judge’s treatment of the mother’s case under Article 13(b), and his approach to her assertion that she would not accompany the children if a return order was made.

Appeal dismissed.

Acquiescence - Art. 13(1)(a)

The first instance judge held that the father’s messages indicated that he was accepting that the mother and the children would not be returning. While he may have preferred of them to return, he was not pressing for it. 

Therefore, the father had acquiesced to the mother’s wrongful decision to take the children to live in England, albeit he may have hoped that he could eventually persuade her to agree to return to France with the children. 

This decision was upheld on appeal.

Grave Risk - Art. 13(1)(b)

The first instance judge held that there was a real risk that if a return was ordered the mother would refuse to travel to France with the children and that separating the children from their mother and placing them in the sole care of their father would place them at grave risk of physical and psychological harm and put them in a position that they should not be expected to tolerate. 

On appeal, the court found that the first instance judge had misdirected himself by basing his decision on a presumption that the mother would not return rather than conducting and assessment of the situation. 

Where a parent asserts that they will not accompany the child to return, the court will scrutinise the assertion closely. The court will make a reasoned assessment of the degree of likelihood of the parent not returning, taking into account relevant considerations such as the overall circumstances, the family history, any professional advice about the parent’s health, the reasons given for not returning, the possibility that the refusal is tactical, and the chance of the position changing after an order is made. The court will then factor its conclusion on this issue into its overall assessment of Article 13(1)(b). 

However, in this case the court was satisfied that the result would have been the same had he directed himself correctly and so dismissed the appeal.