Unconventional

Family Law|June 17th 2015

Just when you think you’ve heard it all before as a family lawyer, you realise you haven’t at all. I’ve just had a quick glance at a new judgment published on Bailii. It seemed a fairly run-of-the mill Hague Convention case, with nothing particularly unusual about it. And then I read the penultimate paragraph.

A v B concerned a father’s application for the summary return of his three year old daughter to Italy. The mother raised two defences: firstly, that the child was not habitually resident in Italy at the time of her removal and secondly the Article 13(b) defence: that a return to Italy would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. As I said, nothing particularly unusual there – these two defences seem to be wheeled out in almost every reported Hague Convention case.

The application was heard by Ms Justice Russell in the High Court. She decided that, logically, she should consider the habitual residence defence first, as if that succeeded then there was no need to consider the Article 13(b) defence.

The only slightly unusual aspect of the habitual residence issue was that it was not a question of whether the child was habitually resident in Italy or this country, but rather a question of whether she was habitually resident in Italy or Hungary, the mother’s home country. After reviewing the evidence, Ms Justice Russell came down clearly in favour of the child being habitually resident in Hungary, where her integration into social and family life was inextricably linked with that of her mother, with whom she had always lived. It was true that the family had spent time in Italy, but these visits were simply holidays.

Accordingly, the father’s application failed – (note that no return to Hungary had been sought). It was not therefore necessary to consider the Article 13(b) defence, and the judgment accordingly mentions little about it. Save for a couple of interesting facts.

Firstly, we are told that the mother had made “serious allegations” about the father’s behaviour, alleged criminal activity and domestic abuse. What was the father’s response to those allegations? Well, we find this out in the penultimate paragraph of the judgment.

The father’s plan to ensure that the mother and child could return safely to Italy was ingenious in its simplicity. He proposed that they be placed in a convent in Italy. Well, that would certainly have protected them from the possibility of domestic abuse, although I’m not sure what the resident nuns would have thought about the arrangement.

Needless to say, Ms Justice Russell was not impressed with the father’s suggestion. She said that the mother and child would be “effectively imprisoned” in the convent, as their movements would be restricted. This, she said, was a repugnant suggestion which was “wholly in keeping” with the tenor of the father’s evidence and his controlling attitude towards his child and her mother.

Still, I have to give the father credit for his resourcefulness. As its strapline says, this blog is where family law meets family life. I would expand that a little: it is where family law meets family life, and don’t be surprised by where family life takes you!

The full judgment in A v B can be read here.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(3)

  1. Dr. Nigel Miles says:

    So the issue is where the child habitually is to reside. Surely the issue is to the mindset if the child to be part of the lives of both parents!

  2. Bolchedik says:

    ‘credit for his resourcefulness’

    Since when was being an outrageous fool synonymous with resourcefulness? It is just perverse to call this resourceful. Either that, or this is just yet another tedious attempt to represent dads as being little better than apes.

    Also, since when is it any less ‘controlling’ to curtail a child’s contact with another parent, and to go so far as to make false allegations and move to another country to do this? Controlling is one of those funny words, which seems to apply only to the dog and not the owner.

  3. Andrew says:

    It’s a pleasing touch, reminiscent of Wilkie Collins!

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