Mother ordered to return child to different country from where he was removed

Children|January 24th 2019

Well this is an unusual one. I don’t recall ever previously hearing of a Hague Convention child abduction case in which the court ordered the return of the child to a different country to the one from where they were removed. But that is exactly what happened in the recent High Court case S v D (Hague Convention: Domestic Abuse: Undertakings: Return to Third State).

The facts of the case were that the parents were both Hungarian nationals. They were married, and had one child, a boy aged 4 years 3 months. In early 2017 the family moved from Hungary to Germany. Thereafter, the marriage broke down and the parents separated in March 2018, when they travelled from Germany to Hungary for a short holiday, and after a few days the father returned to Germany. Shortly thereafter the mother and the child travelled to England. The mother did not return the child, and the father made an application under the Hague Convention for him to be summarily returned to Hungary.

The mother opposed the application, on the grounds that there was a grave risk that the return of the child would expose him to physical or psychological harm.

The application went before Mr Justice Cobb.

He was satisfied that the removal of the child from Germany in March 2018 was wrongful and in breach of the father’s rights of custody (this was not in issue). He said that the evidence was inconsistent with the mother’s case that the father knew that she was intending to travel to England, certainly on a permanent basis, but even if he was wrong about wrongful removal, he was absolutely satisfied that the retention was wrongful – there was no evidence that the father agreed to a permanent relocation, and it was not said that he acquiesced in the same.

Turning to the mother’s ‘harm’ defence, Mr Justice Cobb was satisfied that the father had displayed violence to her, both historically and recently. However, he was also satisfied by the various undertakings offered by the father, including to pay for the mother to return to Hungary with the child, not to assault, harass, threaten, or molest the mother or the child, not to remove the child from the care and control of the mother save for the purposes of any agreed contact, and to provide as soon as possible for the mother a two-bedroomed apartment in the city in Hungary where the father lives. These undertakings were sufficient to protect the mother and child from harm.

Accordingly, Mr Justice Cobb was prepared to order the return of the child, and he did so, after receiving the undertakings in written form, signed by the father.

As to the ‘different country’ point, he said:

“…this case has been … rendered the more unusual by the fact that the applicant seeks the return of [the child] to a ‘third state’. I dispose of this aspect now. [Counsel for the mother] submits that it would be “exceptional” for a court to order a ‘return’ to a third state. I am loath to use the word ‘exceptional’ because to do so would be to overstate the position; further, ‘exceptional’ is one of those words which once used tends to acquire quasi-statutory authority in a wholly unintended way. For my part, I would be prepared to accept that it will be an unusual case where the court will order a return to a third state, but it is in principle unobjectionable, and each case will be fact-sensitive. As it is, the mother would, it seems to me be more greatly disadvantaged in the return order being made to Germany – a country where, she says, she never wanted to live. At least in Hungary she has family and some support.”

All of which seems to me to be eminently sensible. Apart from any disadvantage to the mother in being made to return to Germany, it seems quite clear on the facts of the case that Hungary is the child’s true ‘home’ country, and that it is the courts of that country that should make any necessary decisions as to his long-term future.

You can read the full judgment here.

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.

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