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The father was born in the USA. He lived there until he relocated to England in 2014. The mother had always lived in England.

The mother and the father met in England in 2015. They began a relationship and married in December 2015. They bought a home together and lived there with the mother’s daughter from a previous marriage. Their first child was born in 2017.

In January 2018 the father moved back to the USA, visiting the family every few months. Their second child was born in that year. The whole family moved to the USA in November 2019, including the mother’s child from a previous marriage. 

In May 2020, the mother and children returned to England without the prior knowledge or consent of the father. The father made an application under the 1980 Hague Convention for the return of the children to the USA. 

The mother made clear that she would not return to the USA with the children for a number of reasons including the father’s violent bahaviour and in order to stay with her daughter from a previous marriage. 

At first instance the Judge held that the mother had not established either of the grounds relied on by her in opposition to the application, acquiescence and Article 13(1)(b), and ordered that the children be returned to the United States of America.

The mother appealed the decision.

Appeal allowed, return refused. The first instance judge had erred in her approach to determining whether there was a grave risk to the children under Article 13(1)(b).

Acquiescence - Art. 13(1)(a)

Messages between the parents showed that the father had said he did not agree to moving back to England but that he would have to in order to raise his children. The father moved to the England for six months but told the mother that she should be planning a date to leave the UK.

At first instance the Judge found that this was an attempt to achieve reconciliation and did not amount to an acceptance that the children should remain in the UK absent any serious attempt to make the marriage work and reunite the family.

The Court of Appeal found that the first instance Judge was entitled to reach this conclusion. 

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

Looking at the evidence, the first instance Judge did not consider that the Article 13(1)(b) exception was established. The father had looked after the children a good deal in the USA and had very frequent contact. Also the elder child was at an age where she was able to understand and to cope with separation from her mother better than the younger children, and as long as she was able to remain where she has established family and friends, her welfare would not be too adversely affected. Therefore, the mother’s assertion that she would not return to the USA did not sit easily with her arguments concerning a grave risk to the younger children if they were to return to the USA without her. 

The Court of Appeal held that the first instance Judge did not undertake the appropriate approach to determining whether there was a grave risk to the children. The Judge wrongly discounted the mother’s allegations and did not determine the effect of the allegations if true. Further, the Judge did not consider how the children would be protected from the risk which would be created if the children were living with the father. 

The Court had no doubt that, the mother’s allegations, if true, would meet the high threshold of Article 13(1)(b).

The mother had a valid reason for remaining in England and so the Court considered how the children would be protected from the risk arising from the mother’s allegations and found that no protective measures would mitigate or address the grave risk arising from the situation. The separation of the children from their primary carer in the circumstances of this case, would further reinforce the creation of a grave risk within Article 13(1)(b).