The High Court has recently made a ruling in the international child abduction case Mr SD v Ms MM.
The case – international child abduction
The parents (Mr SD and Ms MM) separated in around October 2022. They had two children whilst they were together (referred to as R and S within the court proceedings) who were aged almost 8 and almost 10 at the time of the final hearing in England. Both parents and the children are Romanian citizens and they were all living in Romania at the time of the separation and following the separation (with R and S living with the mother and spending time with their father following their parents’ divorce).
There were court proceedings in Romania following the parents’ separation. In January 2024, the mother sought the Romanian court’s consent to her moving to the UK with the children for a period of 3 years so that the children could go to school in England. The father was opposed to this happening and the Romanian court did not provide the mother with consent.
Two weeks later, the mother brought the children to England without the father’s knowledge or consent. In May 2024, the father made an application under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Hague Convention”) for the summary return of R and S to Romania. The mother opposed this application.
The final hearing took place in England in August 2024. The court heard that R had been diagnosed with Asperger’s Syndrome just before he turned 4. In consideration of this, the parents had agreed that he attend an International School in Romania and R attended this school for 3 years. R moved to a Romanian private school in September 2022 (as the parents could not afford to send both children to the International School following their separation). R then moved to a Romanian state school in September 2023 (as the father queried the benefit of private school and was unable to afford the fees with the payments he would need to make to the mother as part of the divorce settlement). The court heard that the mother had observed that R was struggling to keep up, frustrated, unhappy, angry, refusing to write or participate in class, and at risk of losing confidence and developing a dislike of school whilst attending the Romanian state school. The father did not agree that it had been this bad and thought that things would improve with parental support and encouragement.
On arriving in England, R and S attended school in England and the court heard from the mother that their current school had a Learning Support department and that the school may offer R additional support. The mother also reported that she had extended family in England and that R and S had been spending lots of time with them as well as being settled at school, making friends and attending clubs.
The Judge considered the relevant law. Article 12 of the 1980 Hague Convention provides that where a child has been wrongfully removed, “the authority concerned shall order the return of the child forthwith” (this is provided that proceedings are started within 12 months of the wrongful removal). The exceptions to Article 12 (sometimes referred to as the defences to Article 12) are contained in Article 13. In relation to R, the mother sought to rely on the exception contained in Article 13(b), “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. Mother’s barrister submitted that if this exception was made out in relation to R, it would be wrong to order that S be returned as this would separate the siblings.
The judgment
The Judge ordered the summary return of R and S to Romania. The Judge did not feel that mother’s description of R’s experience at the Romanian state school could be characterised as grave or as situation he should not be expected to tolerate. The Judge also considered that, when spoken to by the Children and Family Court Advisory Support Service, R did not express any worries about returning to Romania. The Judge went on to say that even if they were wrong and a return to a Romanian state school would be intolerable for R, there was no prospect of him needing to return to a Romanian state school as the mother could meet the costs of a private school in Romania.
This case illustrates the importance of seeking legal advice prior to relocating internationally with children. If you wish to discuss international child abduction, or anything relating to this case, please contact our Family Law team who will be happy to help you.