Domestic Violence & Child Abduction
The recently reported case of Re A (Children) (Abduction Article 13(b) [2021] EWCA Civ 939 highlights the importance of the Court considering the issue of risk to children, particularly issues of domestic violence between parents, when it deals with applications for return orders.
The appeal
This was an appeal made from an earlier decision of Mrs. Justice Judd, who had been hearing an application made by a father pursuant to the Hague Convention. He applied for the children’s return to the US which the mother objected too arguing that (i) the children were not habitually resident in the US (ii) that the father had acquiesced to their move to England, and (iii) there was a grave risk of the children returning following the father having alleged to have been violent and abusive towards the mother.
Impact of residency
Another complicating factor was that the mother, if the children were Ordered to return, said that she would not return with the children and would remain in the UK with her eldest daughter (who was not part of the proceedings).
Mrs. Justice Judd had initially found that the children were habitually resident in the US at the time of their removal and that the father had not acquiesced to their move to the UK. She also discounted the mother’s case that there was a grave risk to the children in their return. She Ordered the children to be returned to the US.
The risk to children
The Court of Appeal found that the Judge had not approached the risk to the children in the correct manner. It was found that the Judge had discounted the allegations but not considered all of the evidence and also that, having discounted the allegations, she did not go on to consider whether, if true, they did create a grave risk. The Judge had not considered fully the effect on the children of being placed into the care of their father who was facing allegations of abuse.
The father offered protective measures however the Court of Appeal found that no such measures could mitigate the risks to the children. As a result of this the Court of Appeal dismissed the return Order.
