The High Court has ordered a child to return to England after finding that the mother had not shown that return would place the child in an intolerable situation. The child is to return in the mother’s custody, and the court accepted the father’s sworn undertaking not to enforce his custody order until the English courts revisit the matter.
The judgment, delivered by Mr Justice Michael White on 6 June 2012, concerns an application under the Hague Convention on the Civil Aspects of International Child Abduction. The father sought the child’s return to her habitual residence in England. The parents were not married. The child had lived with her mother and had regular contact with her father.
The mother moved with the child from London to Ireland on 4 January 2012, while family-law proceedings were under way in England. An English court order had prohibited her from removing the child from England and Wales. At the Irish hearing, it was accepted for the mother that England and Wales had been the family’s habitual residence and that the child had been removed without consent, contrary to a court order.
The mother relied on the Convention’s exception for a grave risk that return would expose the child to physical or psychological harm or otherwise place her in an intolerable situation. In an affidavit, she alleged that she had left to protect herself and the child from the father and people associated with him. She also alleged that he was violent, had criminal and gang connections, and was involved in selling and growing drugs. The father denied the allegations and said the mother and child were not under threat from him. Those allegations were not findings of this court.
The mother also challenged the court’s consideration of a social-care report prepared for the English proceedings, arguing that its author could not be cross-examined. The judge admitted the report as information about the child’s social background and used it to assess the credibility of the mother’s case. He said the Irish court was not deciding custody or access issues addressed in that report. The report raised concerns about the mother’s alleged drug misuse and ability to care for the child; the judgment did not make a custody finding on those matters.
The judge said the danger allegations were appropriate for the English courts to determine and noted that Barnet children’s services had not raised them as concerns in the report. He concluded that the mother had not established a sufficient case that the child’s life would be intolerable on return. The court’s order addressed return under the Convention; it did not decide which parent should have custody in the longer term. That question remained for the English courts.