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S v B and Y (A Minor) [2005] EWHC 733 (Fam)

Child’s return to New Zealand ordered under Hague Convention, as Article 13(b) exception not established.

S v B and Y (A Minor) [2005] EWHC 733 (Fam)

Family Division: Sir Mark Potter P (4 May 2005)

Child's return to New Zealand ordered under Hague Convention, as Article 13(b) exception not established.

This was an application by a father under the Hague Convention on the Civil Aspects of International Child Abduction 1980 ('the Convention') in relation to his daughter born in New Zealand in July 2003. The mother was English, the father was a New Zealander, and they were not married. Their relationship began when the father came to England in 2001. After a short time, the father returned to New Zealand and the mother joined him there on what was intended to be a settled and permanent basis, having taken her 10-year-old son with her. However, the parties' relationship was not happy, and the father left the family home in October 2003.

At the end of 2004, the mother agreed with the father that she would travel to England and take their daughter and her son during his school holiday; and return tickets were purchased accordingly. Once the mother was in England, the depression that she had experienced in New Zealand lifted; and her son revealed how unhappy and isolated he had felt in New Zealand. The mother dreaded the prospect of returning to New Zealand, and so she registered her son to attend a school in England and informed the father by telephone of her decision to stay in England with the two children. Also, she made arrangements for the family home in New Zealand to be sold.

In January 2005, the father commenced proceedings in New Zealand for the return of his daughter under the provisions of the Convention, and issued an originating summons in the UK in February 2005. At a directions hearing in March 2005, it was ordered that the mother's son be joined as second defendant to the originating summons so that his views and wishes, which were plainly relevant, could be clearly presented to the court.

It was agreed between the parties that the evidence established a case of wrongful retention under the Convention. Thus, the court was obliged to order the return of the child to New Zealand unless the mother was able to establish the exception in Article 13(b) that 'there is a grave risk that his or her return exposes the child to physical or psychological harm or otherwise places the child in an intolerable situation'.

On behalf of the mother, three elements were identified which, together, contributed to the grave risk that such an intolerable situation would arise: (1) the mother's psychological state; (2) the fact that the mother had sold the family home in New Zealand; and (3) the impossible situation that she found herself in concerning her son, who would either be forced to return to New Zealand against his will, or remain in the UK and be separated from his sibling and, possibly, his mother.

As to (1), the President heard evidence that the situation regarding the mother's emotional state as between the UK and New Zealand was not clear-cut, and concluded that it would certainly fail the working test suggested by Thorpe LJ in Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478; evidence was presented to the effect that item (2) could be relatively easily overcome; and, in respect of (3), the decision of the Court of Appeal in Re C (above), which established that it was wrong to place too much weight on the effects on a child who was not the subject of the Convention, was relied on.

Held, granting the order for the daughter's return to New Zealand, that the mother had failed to establish the exception in Article 13(b) of the Convention.

Further, the President considered that it had not been necessary to join the mother's son as a party, and observed that, at least in relation to non-European cases, the need to order separate representation in relation to a child who was not the subject of the application would arise very rarely.

Read the full text of the judgment here