Judge prioritises safety of child under Hague Convention

A case heard in the High Court saw a judge refuse to order the return of a 17-month-old child to his father in France.

The case involved a couple who met in 2018. The mother divided her time between living with the father in France and working in the UK as a specialist nurse.

She returned to England in 2020 and in May of that year discovered that she was pregnant. She remained in the UK until the baby was born in October. She went to France to be with the father when the baby was eight weeks old. The mother and baby returned to the UK in May 2021.

The father submitted that that removal of the child was wrongful under the Hague Convention on the Civil Aspects of International Child Abduction and argued that the court was required to order the child’s return.

He offered financial provision and accommodation for mother and child. He also undertook not to harass, pester, intimidate, threaten, or use violence against the mother or her property.

The day before the hearing he offered to provide separate accommodation for the mother and child.

That offer was made after receipt of a psychiatric report which indicated that the mother suffered from depression and anxiety, had experienced emotional dysregulation, and suicidal ideation, and had self-harmed during the relationship with the father.

The medical evidence was that a return to France would adversely affect her mental health.

The mother alleged that the father was aggressive, abusive and physically controlling. She had become so distressed that she had sought professional help and joined a support group for domestic abuse victims.

She accepted that he had custody rights but argued that in May 2021 the child was not habitually resident in France.

When considering the case, the court had to focus on the child’s situation if a return was ordered.

He was very young and strongly dependent on his mother. The risk to him of his mother becoming suicidal was obvious and the child should not be expected to tolerate or cope with that.

Despite the offer of separate accommodation, a return to France would place significant stress on the mother. She would be unemployed, financially dependent, and away from her parents’ support during a pandemic which disrupted travel between England and France.

Even taking into account the protective undertakings offered, the grave risk that a return order would expose the child to psychological harm, or an intolerable situation persisted.

The court refused to make the return order.

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