Reported Case

In the High Court of Justice - Family Division

In this case I am concerned with a little boy called S. S is now aged 5 years old. This is an application by S's father, AT for the summary return of S to Holland pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (hereafter 'the Convention') and the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (hereafter BIIa).

The mother of S is SS. She currently resides in this country with her husband, MM, together with MM's child from a previous relationship. The mother is currently heavily pregnant by MM. S attends school in England and is making progress. The mother opposes the return of S to the Netherlands and submits that she has a defence to the same under Art 13(b) of the Convention. She has indicated that, in any event, she will not accompany her 5 year old son to Holland were this court to decide to order his return.

The parties have managed to agree a number of key issues in this case. Namely, it is agreed that the mother removed S from Holland at a time when S was habitually resident in that country and that the mother's removal of S was in breach of the father's rights of custody in respect of him. At the time the mother removed S from Holland there was also a family supervision order in force in respect of S. Accordingly, it is agreed that the mother's removal of S from Holland was wrongful for the purposes of Art 3 of the Convention.

Within this context, both Ms Chaudhry, who appears on behalf of the father, and Ms Renton, who appears on behalf of the mother, have been astute to concentrate on the single issue that remains in contention, namely whether the mother has established that to order the summary return of S to Holland would expose S to a grave risk of physical or psychological harm or would otherwise place him in an intolerable situation for the purposes of Art 13(b) of the Convention. If I conclude that it would, Ms Chaudhry invites me to exercise the discretion that thereby arises in favour of returning S to Holland. Ms Renton invites me to exercise my discretion to refuse such a return. Whilst the dispute in this matter has crystallised into a single issue, in the particular circumstances of this case it is an issue of some complexity.

Find full details of this case on Bailii’s website here.