The High Court has refused to postpone an order for the return of a five year-old child to Holland.
The case concerned an Afghani couple who both also hold dual Dutch nationality. They married in 2007 and their son, ‘S’ was born in 2010. They separated sometime after November 2011 and the boy remained with his mother. He also spent periods in foster care when the mother began to suffer from mental health problems. The father wished to see his son and a protracted contact dispute began in the Dutch courts.
The mother alleged that the father had been abusive towards her. The courts eventually ordered the father be allowed to see S on a supervised basis in a contact centre, but the mother would not cooperate. She continued to struggle, meanwhile, with her mental health.
Later the mother suddenly moved to a different part of the country, continuing all the while her refusal to cooperate with the Dutch family courts and allow the father to see S. Eventually the authorities threatened to begin fining her if the situation continued. The mother left the country, taking S without the father’s permission, and moved to England with her new husband.
In England, the father launched successful proceedings for the return of his son under the Hague Convention on the Civil Aspects of International Child Abduction. The mother admitted she had breached the Convention but argued that returning S would place him at risk of harm or into “an intolerable situation”. She announced that she would not return with him to the Netherlands in any case.
The boy should be returned to his father, ruled Family Division Judge Mr Justice MacDonald, but since the mother refused to accompany him, there should be short delay while arrangements were made for the trip he said. The father was still not allowed unsupervised contact with S, so the boy would be taken into foster care once back in his native country.
Later, however, the mother changed her mind, saying she would accompany S back to Holland after all, but asked the courts to postpone their departure for two months.
She was heavily pregnant at the time of the return order and initially claimed she had been advised by her GP and midwife that she would not be able to fly until after the birth. But the Judge said there was no evidence to support these claims or to suggest that she had in fact checked with airlines to see whether she would be able to fly.
Later she claimed she would not be able to fly until she had fully recovered from the birth of her second child, but again there was no evidence to substantiate this.
The Judge refused the mother’s application, saying the necessary arrangements for the return of S had now been made while the mother had failed to provide convincing evidence that she really required further time to prepare for the trip. Further delay, moreover, was not in S’s best interests. In addition responsibility for the case had passed to the Dutch authorities Mr Justice MacDonald noted.
“In these circumstances, having ordered the return of S to the jurisdiction of Holland this court must take care not to in any way to usurp, or to be thought to be usurping the functions of the court of S’s habitual residence by retaining him in this jurisdiction any longer than is necessary to effect his safe return to Holland.”
Read AT v SS here.