The recent case of KL v PQ NIFam 13, heard in May 2024 by the High Court of Justice in Northern Ireland’s Family Division addressed a complex issue concerning the wrongful removal and retention of children under the Hague Convention on International Child Abduction. Its outcome is a useful reminder of its key Articles and how their detailed application guide a court’s decision in countries signed up to the overarching convention.
Background
The parents, both natives of an unnamed African country, sought asylum in the UK, with the father being granted asylum in 2010 and the mother in 2014. Their relationship deteriorated, leading to a divorce under Sharia Law in 2017. In October 2019 the mother and the children, with the consent of the father, travelled from the European country to Dublin, and from there to Belfast. The father had agreed to the mother and children travelling for a short holiday. The mother later informed the father that she did not intend to return to the European country.
The children (born in February 2015 (AB) and August 2016 (CD)) had as a consequence resided in Northern Ireland since early childhood. AB was also diagnosed with severe learning difficulties, a language disorder, and was awaiting further assessment for autism spectrum disorder. He has been in a specialise school since May 2022 which allowed him to be in a class of 12 pupils which had one teacher and two, sometimes three, classroom assistants. The school staff are all trained by therapists to assist and support the children. CD was diagnosed with Type 1 Diabetes and consequently benefited from a dedicated medical classroom assistant to help him manage his condition. In December 2019 the children started attending a school in Belfast. The mother and children were granted leave to remain in the UK for five years starting May 2022. The mother acknowledged that the removal of the children from their previous country was wrongful under the Hague Convention. An Official Solicitor was appointed to represent both the children.
Legal Issues
The court examined several key questions:
- Should the children be returned to their country of origin (UK) under the Hague Convention, despite the mother’s acknowledgment of wrongful removal?
- Are the children settled in their new environment in Northern Ireland, which may influence the court’s decision on their return?
- Would returning the children expose them to a grave risk of physical or psychological harm?
Key Hague Convention Provisions
Under Article 12, the court must order the return of a child unless it is demonstrated that the child is now settled in the new environment. Article 13 provides exceptions to return, including if the left-behind parent was not exercising custody rights, consent was given, or the return would expose the child to a grave risk of harm. Article 18 allows the authority discretion to order the child’s return at any time.
Court’s Findings
The court determined that the children had established a settled life in Northern Ireland, evidenced by their emotional and psychological stability. The lack of a relationship with their father was significant in assessing the children’s settlement.
The mother failed to prove the two exceptions that the father consented to the children’s retention in Northern Ireland and that he was not exercising custody rights. The mother also made allegations of domestic abuse which were denied by the father, the absence of oral evidence made it challenging for the court to ascertain the truth of these claims. The court did however find that the last noted exception was proved and found that returning the children would expose them to a grave risk of psychological harm and place them in an intolerable situation, as uprooting them from their current environment would cause significant disruption. The arguments for this mainly came from the Official Solicitor who argued that the children were both extremely happy and settled in Belfast, which was evidenced to address their needs medically, psychologically, cognitively and in terms of their identity and cultural background. The Official Solicitor also cited that there was clear evidence that neither has a relationship with their father and that this had not been maintained.
Consequently, the court concluded that as the exception outlined in Article 13(b) of the Hague Convention were satisfied, it would not be justified to grant to return the children. The court declined to exercise its discretion to order the return of the children based on findings of settlement and the grave risk of harm, thus denying the father’s application.
Conclusion
This case is a good reminder of the key Articles of the Hague Convention and how they are applied by those courts that are signed up to it. It prompts us to remember that the welfare of the child is the court’s paramount consideration and that consequently they will approach decisions from the point of view of the child only.
If you wish to discuss anything mentioned in this article, please get in touch with our Family Law team, they would be happy to help.