A recent case very helpfully considered factors that need to be taken into account when a Court considers an application for return of a child to another country that is signatory to the Hague Convention.
This case centred on a 9-year-old girl (V). Her parents are Ukrainian nationals. The family had lived together in the Ukraine until approximately 2020 when they divorced. The father subsequently moved to live in the Netherlands. V remained living with her mother and they came to England. Thereafter, the parents came to an agreement that V would live with her father in the Netherlands. V moved to the Netherlands in April 2023. V attended school in the Netherlands. The parents had reached a written agreement that V would live with her father at least until 1 September 2024 although the father considered that there was agreement V would live with him for longer.
On 14 September 2024 the mother went to the Netherlands (the father believed the mother was relocating there) but on 28 September 2024 the mother removed V from the jurisdiction taking her first to France, then to the Ukraine before travelling to England in the October.
On behalf of the father an application was made to the Court arguing that V had been wrongfully removed.
In cases of wrongful removal of a child (or retention), provided an application for return of the child to that Hague Convention signatory country is lodged within a year, the Court must order the return of the child forthwith unless an exception (under Article 13) is met.
In this case the father had expressed serious concerns about V’s welfare since her arrival in England. There were concerns that the mother had not engaged with the CAFCASS officer. The maternal grandfather’s partner had reported that V was being neglected by the mother. V had been spoken to by a social worker and V had reported concerning features of her care.
As a consequence of these concerns the Court made a decision to direct, pursuant to Section 5 of the Child Abduction and Custody Act 1985, that V be accommodated in foster care. The Court considered that V was at risk of suffering significant harm in the care of her mother.
In considering the case the Court had to determine: –
- Where V was habitually resident.
- Whether there were any exceptions that would challenge Article 12 of the Hague Convention that would otherwise provide that the Court must order the return of the child forthwith.
The Court decided that as at 28 September 2024 when V had been taken from the Netherlands by her mother, V was habitually resident in the Netherlands. The Court considered the factors associated with determining habitual residence referencing how the test is essentially a factual one and that V’s habitual residence would be to a place in respect of which she had some degree of integration. The Court considered that V was integrated into the Netherlands jurisdiction.
The Court considered whether there were any exceptions to the Article 12 obligation to return. The Court considered that exceptions were not met in relation to it being demonstrated that the father had in the Netherlands been exercising his responsibilities towards V and there was no grave risk to V that her return to the Netherlands would expose her to physical or psychological harm or otherwise place V in an intolerable situation.
The Court considered the question of whether V herself objected to going to the Netherlands and considered that whilst V had expressed a strong preference for the school in England that she was now attending over her school in Amsterdam, she did not object to returning to the Netherlands.
The Court therefore made an order for V to return to the Netherlands with her father considering that the mother’s removal of V from the Netherlands on 28 September 2024 was wrongful.
Going forward the Court directed that any disputes about V’s welfare will be for the Courts in the Netherlands to resolve.
This is a useful case in reminding of factors including: –
- The aims and objectives of the 1980 Hague Convention namely: –
- Protect children from the harmful effects of being subject to a wrongful removal or retention.
- The ensure the prompt return of abducted children to the country in which they are habitually resident.
The case helpfully sets out the factors at play in assessing in which country a child is habitually resident before going through the approach to considering any exceptions to the provision that the Court must order the return of the child to the country to which they had been wrongfully removed.
If you face a similar situation and need support please contact our Family Law team on 0345 450 5558 or enquiries@stephens-scown.co.uk