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S (A Child) (1980 Hague Convention Stranding) [2022] EWHC 214 (Fam)

Peel J considers and applies PD 3AA and 12J (domestic abuse/ coercive control) to a Hague Convention Abduction case and makes a suspended return order to allow M to obtain a visa to travel to Portugal where the welfare issues would be resolved and gave directions to allow a welfare decision if the mother had to return to Pakistan instead.

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M is a Pakistani national who was living in Portugal with F who was a Portuguese national of Pakistani background. M's status in Portugal had depended on a spousal visa. S was born in September 2020. In November 2020, the father decided to end the marriage. He removed S to England and placed her with his brother (U) and sister-in-law (A). He returned to Portugal. M was removed to Pakistan, escorted by members of paternal family who kept her travel documents and returned them to her damaged so they could not be used to return to Portugal. S had been told by F that once she was in Pakistan S would be returned to her. This did not happen.

In July 2021 she issued proceedings in the UK under the inherent jurisdiction and Hague Convention for return of S to Portugal or under the inherent jurisdiction for S's placement with her in Pakistan. The judge noted [para 1ii] that the latter could have been an application for a s8 order: Re N (A Child)(Abduction: Children Act or Hague Convention Proceedings) [2020] EWFC 35; [2020] 2 FLR 575. S was made a ward of court in September 2021. Video contact between M and S began in July 2021.

F, U and A all opposed the applications. They sought for S to remain with U and A who hoped to adopt S in due course. They raised defences to the Hague Convention application alleging:

(a) That M consented to the removal (Art 13(a))

(b) That there is a grave risk that to return S to Portugal would expose him to physical or psychological harm or otherwise place him in an intolerable situation (Art 13(b)).

Peel J was satisfied [para 11] that PD3AA and PD 12J were engaged, applying In Re A (Children: Fact-Finding: Appeal) [2019] EWCA Civ 74; [2019] 1 FLR 1175.   Peel J directed special measures for taking the oral evidence as F, U and A had dispensed with legal representation. Screens were in place to hide the mother from the respondents and the respondents' questions were set out in writing and put to the mother by the judge. He had concluded that although a Hague application it was an appropriate case for oral evidence. Although M had been unable to secure permission to return to live in Portugal. She had, however, secured a visa which enabled to attend the hearing in England.

Having reviewed and summarised the recent case law on Article 13(a) and Article 13(b) and when a discretion not to return might be arise [See paras 16-19] he set out the evidence factual findings at [paras 20-46].

The judge concluded [para 47] that M had been subject to coercive and controlling behaviour and physical abuse during the marriage and when she was removed to Pakistan, where she was in effect abandoned. The F and his family's actions were designed to prevent M having a relationship with S. Their behaviour was described as "unspeakable cruelty". He held that the mother had not consented. He concluded that if the mother was able to return to Portugal the Article 13(b) defence would also fail. It would be engaged if she was not able to return, as the father was not able to look after S.

He considered the case law under Hague on delayed return orders [Para 52] and made a suspended return order (while the mother made a renewed attempt to get a visa to return to Portugal). He directed that S should be made a party to the proceedings and a children's guardian be appointed and statements directed so that the court could consider the welfare of S if M could not return to Portugal. If she did obtain a visa then the inherent jurisdiction proceedings would end.  He ordered 3 sessions of unsupervised contact each week and would review the situation on 18 February 2022. The judgement was to be disclosed to Manchester City Council and the Portuguese authorities.

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII