Category: International

The rationale behind the Hague Convention on Child Abduction is that the child should usually be returned to their ‘home’ country, where decisions as to their welfare should be decided. It is therefore comparatively rare that a return is not ordered. Accordingly, ‘non-return’ cases are more likely to be noteworthy.

The latest such case that I have come across is CA v KA, a decision of Mr Justice Mostyn in the High Court. The case turned on the issue of acquiescence, i.e. whether the ‘non-abducting’ parent had consented to, or acquiesced in, the retention of the child in the ‘foreign’ country.

The relevant facts of the case were that the parents were married and lived in Germany, along with their daughter, who was born on the 5^th of July 2016. On the 3^rd of August 2018 the mother brought the child to this country, for the purposes of a holiday. They were booked to return to Germany on the 30^th of August 2018, but they did not return. The father then made an application under the Convention for the summary return of the child to Germany.

The crucial moment in the case came on the 22^nd of October, when the parents spoke for about two and a half hours on the telephone. During the course of that conversation, Mr Justice Mostyn found, they reached a substantive agreement, which provided that the child would remain in the primary care of her mother and would have frequent contact with her father.

On the following day the father wrote an email to the German authorities requesting the withdrawal of his Hague Convention application, and stating that “my wife and I were able to find a very good and mutually agreed solution which is in our daughter’s best interests and which we will regularise.”

On the next day the mother sent a draft parenting agreement to the father, which was prepared by her and which stated that the matters were agreed on the 22^nd of October, including that the child would reside in the United Kingdom with her mother.

Notwithstanding all of the above, the father proceeded with his Hague application (presumably, he withdrew his request to withdraw the application, the judgment of Mr Justice Mostyn does not explain). However, Mr Justice Mostyn found that the email and draft agreement clearly showed that the father had consented to, or acquiesced in, the retention of the child in this country by the mother.

As he went on to explain, proof of acquiescence does not establish an absolute defence to the application. However, it opens the door to the court exercising its discretion to refuse to order the return of the child. Here, whilst Mr Justice Mostyn was quite clear that it should be the German courts that make decisions regarding the child’s welfare, he did not believe that it would be in her interests for her to be uprooted and to be exposed to the risk of ‘ping pong’, returning her to Germany now, in circumstances where the mother must have a strongly arguable case in the German court to be granted permission to relocate with her to this country.

Accordingly, he declined to exercise his discretion to order a return of the child to Germany, and the father’s application was dismissed.

An interesting case, although I have to say rather an odd one, in that the father decided to proceed with his application after clearly indicating his wish for it to be withdrawn. Once his email to the German authorities came to light (and he produced it himself on the morning of the hearing), then his application was surely doomed.

You can read the full judgment here. (Mr Justice Mostyn also has some important things to say about the limited nature of Hague applications, and the need for the parents to pursue substantive relief (as to what is ultimately in the child’s best interests in terms of residence and contact with the non-residential parent) in the courts of the ‘home’ country – see paragraphs 5 to 9 of the judgment.)

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As any regular reader of this blog will be aware, reports of cases involving children are usually anonymised to protect the privacy of the child. However, there are occasions when the court decides that it is appropriate to release full details of the case. One such occasion is when the whereabouts of the child are unknown and the court decides to release details in an effort to locate the child.

That is what occurred in the recent case Uhd v McKay, which concerned an application by a father for the summary return of his three year old daughter Ruby to Australia.

There is quite a lot going on in this case, but I don’t need to discuss it all for the purposes of this post. I will not therefore be going through all of the details of the case, but if you are interested you can read the full judgment here.

The essential facts of the case were as follows. The father is an Australian national. The mother is a British national but has lived in Australia for about the last 22 years. They began cohabiting in November 2012 and married in April 2013. Their daughter, Ruby, was born in December 2015, although by that time the marriage had broken down and the parents separated.

On the 22^nd of September 2018 the mother removed Ruby from Australia without the father’s consent, and brought her to England. She then bought a camper van and proceeded to tour the country with Ruby, eventually ending up in the Outer Hebrides, where she lived for two months during October and November 2018.

The father eventually found out that the mother had brought Ruby to this country. He therefore commenced proceedings under the Hague Convention on Child Abduction for Ruby’s summary return to Australia. As Ruby’s whereabouts were not known, Mr Justice Keehan made an order permitting details of the case to be reported in the media, in an effort to locate her. After extensive media coverage, Ruby was located, and the father’s application was set down for hearing.

The mother opposed the application, relying on the exception provided by Article 13(b) of the Convention, namely that to order the summary return of Ruby to Australia would result in a grave risk of exposure to physical or psychological harm, or otherwise place Ruby in an intolerable situation. In seeking to make good that exception, the mother made extensive complaints regarding the conduct of the father during the course of their relationship, and thereafter within the context of extensive proceedings in Australia relating to Ruby’s welfare, which proceedings remain ongoing in that jurisdiction.

The matter was heard by Mr Justice MacDonald in the High Court. His conclusions were quite clear. He said:

“I am satisfied that the mother’s actions in removing Ruby from the jurisdiction of Australia represented a blatant and premeditated act of child abduction. That conclusion is reinforced by the fact that having abducted Ruby from the jurisdiction of Australia, the mother sought to go to ground in the Outer Hebrides in an effort, I am satisfied, to avoid detection … this court is also left with the strong impression that thereafter the mother sought before this court to distort and misrepresent the facts in this case with the aim of bringing herself within the exception provided by Article 13(b) of the 1980 Convention.”

The mother’s Article 13(b) ‘defence’ was not made out, and therefore Mr Justice MacDonald ordered the summary return of Ruby to the jurisdiction of Australia. Any disputes between the parents regarding Ruby’s welfare would be determined by the courts of Australia, the jurisdiction of Ruby’s habitual residence.

Hopefully, this case will act as a warning against parents seeking to avoid the law in the way that the mother did here. The arm of the law is long, and such actions are ultimately only likely to make matters worse.

I should point out that Mr Justice Keehan’s order did not mean that this final judgment need not be anonymised. However, Mr Justice MacDonald took the practical view that, having regard to the extensive information that had already been placed in the public domain by that order, he was satisfied that this judgment should be published without being anonymised.

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