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Re C (A Child) (Child Abduction: Parent’s Refusal to Return with Child) [2021] EWCA Civ 1216

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

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Factual background

C, a six year old boy, was born in France. His parents separated shortly afterwards and the father went to Israel for a time, effectively abandoning him. There was a significant history of extreme conflict; the father could be aggressive and insulting, partly because of what the French court describes as his "bipolarity", while the mother could be irrational in her refusal to entrust the child to him. There was litigation about C periodically in the French courts from 2015. In 2019 an order confirmed residence with mother and father had alternate weekend contact at his father's home. The family judge in Paris had a high level of concern about the impact on C of the conflict.

On 15th March 2020, shortly after a hearing in the Paris court but before judgment was handed down,  the mother brought C to England for what she claims was a short break. Covid-19 lockdowns in England and France intervened, but when in June 2020 the mother could have taken him back she decided that it was better for him to remain here. The father eventually discovered his whereabouts and made a Hague application in November 2020.

The mother raised a variety of defences to the application, including under Art 13(b). She asserted that if the court were to order C's return she would not go with him. Cohen J did not believe that this loving mother, whose original rationale for staying in the UK was her son's best interests, would in reality allow him to return without her but if this did come to pass the father and paternal aunt could collect C, who could live with the aunt.

The appeal

The mother relied on several grounds, most of which were considered not to be arguable and were swiftly dealt with: see §46-57.

She did not seek to appeal the determination that C would not have been placed at risk of grave harm if she returned with him. The key issue was the judge's conclusion that mother would return if C were ordered to go.

It was suggested on behalf of mother that the court fell into error by not requiring the mother to give oral evidence on this point. No application or suggestion was made at the hearing that she should do so and oral evidence is generally not adduced in Hague proceedings save in respect of disputed habitual residence or alleged consent/acquiescence. Accordingly the court could hardly be criticised for not itself requiring mother to give evidence.

There was no suggestion that the available accommodation with maternal grandfather was unsuitable or that the protective measures offered by father, combined with additional measures, would not provide sufficient security for mother and C. Coupled with the judge's appraisal that this was a loving and devoted mother these factors led him to conclude that she would go with C if his return was ordered. It was plainly open to the court to make that finding.

It was also asserted by the mother that the judge had approached the factual issue on the basis of his 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 however set out the correct question and then answered it in terms that made it clear that the judge was not considering whether mother's expressed refusal to return was reasonable but rather gave a bespoke answer focused on this particular mother. There was no basis for asserting that the judge had fallen into error.

Accordingly the appeal was dismissed.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII