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AB v CD (Abduction: Undertakings) [2021] EWHC 665

Hague Convention proceedings in which Mr Justice Peel rejected the mother’s defences and ordered the return of children aged 7 and 3 to Kazakhstan notwithstanding the father’s undertakings would not be enforceable in that jurisdiction.

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Background

The parents, both Kazakh citizens of Chechen heritage, had been married under Islamic law and had two children, E aged 7 and G, 3. After their separation in 2018 the children lived with their mother (M) and spent time with their father (F).

In December 2019 M brought the children to this jurisdiction, without the knowledge or permission of F, and applied for asylum on the basis that the children were in danger from F and that he had threatened to remove them from her care. The children were dependant persons for the purpose of that claim and did not make free-standing applications. Shortly before the hearing, the asylum claim was rejected but M's appeal against that decision was outstanding.

In October 2020 F applied for the children's return pursuant to the Hague Convention 1980. By the time of the hearing the children had not seen or had any communication with F for some 15 months. He had issued an application for contact in Kazakhstan but no hearing had taken place.

The defences

As a result of expert evidence on Kazakh law, M abandoned arguments on habitual residence and rights of custody.

M's 13(b) defence (grave risk of harm or otherwise intolerable situation) was founded on allegations of domestic abuse. There were some legitimate question-marks about the evidence she provided, but the court proceeded on the basis that M had suffered significant verbal and physical abuse. There was no evidence that she had done so since the parties separated, nor that the children were at risk. There was no evidence to back her assertion that she would not be protected by the Kazakh authorities, nor that the children would be required to live with F. There was no evidence at all about the alleged impact of a return on M's mental health. F offered financial support that would enable her to house the children.

In looking at protective measures, the court acknowledged that undertakings offered by F were not enforceable in Kazakhstan although it might be possible to incorporate them in an agreement within the contact proceedings. There is no requirement in law that undertakings must be enforceable in the requesting state for a return order to be made. Objectively there was found to be no real risk that the children would be removed from M's care in Kazakhstan and the court had no cause to doubt F's bona fides.

The 13(b) defence was not made out but return would be deferred to allow time for the parties to enter into an agreement, incorporating the relevant undertakings, for lodging with the Kazakhstani court as part of the contact proceedings

E's objection was not to Kazakhstan but to the thought of living with F. Even if she were objecting to return the court would still have exercised discretion in favour of return, given the circumstances and E's young age which meant that even if her views were taken into account they would be far from determinative.

Postscript

The Supreme Court decision in G v G [2021] UKSC 9, three days after this judgment was given, reverses the Court of Appeal's earlier decision that a child named as a dependant on a parent's asylum application did not have the same protection against refoulement as children who were asylum applicants in their own right. The SC also ruled that a pending in-country appeal acts as a bar to the implementation of the return order. It appears that, until it is determined, the mother's appeal against refusal of her asylum application will prevent implementation of this order.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII