Mother wins appeal in ‘return to different country’ case

Children|Family Law|March 11th 2019

I don’t recall previously writing again about a case as soon as this one. In late January I wrote here about the High Court case S v D, in which a mother was, unusually, ordered to return her child to a different country from where he was removed. The mother’s appeal against that order has already been heard, and allowed.

For details of the case I refer to my previous post. However, I shall very briefly recap, and mention a couple of things in more detail, as they were particularly relevant to the appeal.

The case concerned a four year old boy whose parents were both Hungarian nationals. In early 2017 the family moved to Germany. The marriage broke down and the parents separated in March 2018. Shortly after that the mother brought the child to England, where the mother’s sister lives. The father then returned to Hungary, and applied under the Hague Convention for the child to be ‘returned’ to Hungary. As explained in my previous post, that application was allowed by Mr Justice Cobb.

The two matters that I wanted to mention in more detail were as follows.

Firstly, whilst Mr Justice Cobb was satisfied that the father had displayed violence towards the mother, there was a particular incident which the Court of Appeal clearly thought was of special importance. As Lord Justice Moylan explained, the father travelled to England in early April 2018. The mother told the father that she wanted to end their relationship and apparently in response to this news the father made an attempt on his own life. He was admitted to hospital, where the mother visited him with the child. During that visit, as Cobb J described in his judgment:

“…the father seriously assaulted the mother on the ward; he attempted to strangle her. The mother had been holding [the child] at the time of the assault and dropped him to the floor. Both the mother and [the child] were medically checked and were found not to have sustained any serious or long-lasting injuries, but both were plainly shaken and understandably distressed by the events.”

The father subsequently pleaded guilty to assaulting the mother and was given a suspended sentence of six months. A restraining order was also made prohibiting the father from contacting the mother.

Secondly, the father gave various undertakings to the court to satisfy Cobb J that, as the mother alleged, there would have been a grave risk that the return of the child would expose him to physical or psychological harm. I’ll set the undertakings out in a little more detail, as explained by Moylan LJ:

“The undertakings given by the father included: (a) not … to molest the mother or [the child]; (b) not to remove [the child] from the mother’s care and control and that, pending a decision of the Hungarian court, [the child] would remain in the mother’s care; (c) to submit to supervised contact with [the child] until welfare issues could be considered by the Hungarian court; (d) to provide and pay for an identified property for the mother and [the child’s] sole occupation until 1st March 2019 and an equivalent property thereafter pending the decision of the Hungarian court; (e) to pay the mother maintenance for herself and [the child] at a stipulated rate until the Hungarian court could be seised of the issue of financial support; (f) not to come within a specified distance of the property occupied by the mother and [the child]; (g) to submit to the jurisdiction of the Hungarian court and to “co-operate to bring this matter before the Hungarian court for the purposes of determining” care, contact and welfare issues.”

OK, having got those points out of the way, why did the Court of Appeal allow the mother’s appeal?

Well, it was essentially for two reasons, which I will attempt to explain in language that a lay person can understand.

The first reason relates to the decision to order the return to a different country. This actually amounted to a ‘relocation’ decision, rather than just a ‘summary return’ decision under the Convention. Summary return decisions are intended to be quick, simply returning the child to its ‘home’ country, where decisions as to the child’s welfare should be made. The court dealing with a Convention application does not therefore make a detailed investigation as to what is best for the child’s welfare. However, such an investigation is necessary on a relocation application. Cobb J had not made such an investigation.

The second reason was that, as Moylan LJ explained, Cobb J’s “reasoning as to the efficacy of the protective undertakings provided in this case was insufficient to support his conclusion that they were “effective””. In particular, Cobb J had not addressed the issue of whether the undertakings were enforceable in Hungary. In fact, it appeared that jurisdiction to deal with the case appeared to lay with the German courts, rather than the Hungarian courts.

Accordingly, the mother’s appeal was allowed, and the father’s application for the return of the child was dismissed.

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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