Refusal of the parent to return with the child)


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The Court of Appeal dismissed the mother’s appeal against a return order, finding that Cohen J. applied the correct test and was entitled to conclude, as he did, that the mother would return with the child if the order were made.


Factual background

C, a six-year-old boy, was born in France. His parents separated soon after, and the father went to Israel for a while, effectively abandoning him. There was a significant history of extreme conflict; the father could be aggressive and insulting, in part because of what the French court calls “bipolarity”, while the mother could be irrational in her refusal to entrust the child to him. There have been disputes regarding C periodically in French courts starting in 2015. In 2019, an order confirmed residence with the mother and the father had alternate weekend contact at his father’s home. The Paris family court judge was very concerned about the impact on C of the conflict.

On March 15, 2020, shortly after a Paris court hearing but before judgment was handed down, the mother took C to England for what she claims was a short break. The Covid-19 lockdowns in England and France intervened, but when in June 2020, the mother could have taken it back, she decided it was better for him to stay here. The father eventually found out where he was and filed an application in The Hague in November 2020.

The mother raised various defenses to the request, including under section 13 (b). She claimed that if the court ordered C’s return, she would not go with him. Cohen J didn’t believe that this loving mother, whose initial reason for staying in the UK was her son’s best interests, would actually allow him to come back without her, but if it did, the father and paternal aunt could get C, who could live with the aunt.

The call

The mother invoked several grounds, most of which were considered untenable and were quickly dealt with: see §46-57.

She did not seek to appeal the decision that C would not have been exposed to a risk of serious harm if she returned with him. The key issue was the judge’s conclusion that the mother would return if C was ordered to leave.

It has been suggested on behalf of the mother that the court erred in not requiring the mother to testify orally on this point. No request or suggestion was made at the hearing to do so and oral evidence is generally not produced in The Hague proceedings, except with respect to disputed habitual residence or alleged consent / acquiescence. . Therefore, one can hardly reproach the court for not obliging the mother to testify itself.

There was no suggestion that the accommodation available with the maternal grandfather was inadequate or that the protective measures offered by the father, combined with additional measures, would not provide sufficient security for the mother and C. Couplé. in the judge’s appreciation that she was a loving and devoted mother these factors led him to conclude that she would go with C if her return was ordered. It was clearly open to the court to draw that conclusion.

The mother also claimed that the judge approached the question of facts based on her own objective assessment of what it would be reasonable for the mother to tolerate as opposed to what she would actually do. The judgment had asked the right question, however, and then answered it in terms that made it clear that the judge was not examining whether the mother’s expressed refusal to return was reasonable, but rather gave a tailor-made response focused on that mother in particular. There was no reason to say the judge had made a mistake.

Accordingly, the appeal was dismissed.

Case summary by Gill honeyman, lawyer, Coram rooms

For the full case, please see LEASE

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