The Court of Appeal has ruled that a judge was wrong to order that two children should be returned to their father, who the mother claimed had been abusive.

The mother was English, and the father was American. They married in 2015 and lived in England with the mother’s daughter from a previous relationship.

In 2017, they had a child together. The father returned to live in the US for his job but visited every few months. They had another child in 2018. In November 2019, the mother and the children moved to the US to join the father.

He lost his job in 2020, and mother and the children returned to England.

She gave him no prior indication that they were leaving the US and misled him as to what they were doing on the day they left.

The father made an application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for the return of his two children.

The mother responded that the children were not habitually resident in the US at the date of their removal; that the father had acquiesced in their remaining in England; and that there was a grave risk that the children’s return would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

She alleged that the father was guilty of serious domestic violence to her; a highly abusive sustained course of conduct towards her eldest daughter, which included making it known that he didn’t want her in the US, grabbing her and confining her to her room.

She claimed he had also been abusive to one of the other children by smacking her, squeezing her ribs and threatening her with a belt.

The judge ruled against the mother saying there was no ground for refusing to order the return of the two younger children to the US.

The Court of Appeal overturned that decision.

It held that the judge’s approach was flawed. She had not analysed the effect of the allegations of abuse but had improperly discounted them by reference to their being “no mention of smacking” in the mother’s messages to her friends and by reference to “the context of considerable stress” of the family situation.

As a result, she had not considered how the children would be protected from the risk that would be created if they were living with the father, if the allegations were true.

The judge’s analysis had also failed to recognise the effect of the children being placed in the care of the father against whom serious allegations had been made.

It would create a grave risk of physical or psychological harm if the children returned to their father because their mother would not be there to protect them as she had refused to return to the US.

This was not because she was unfairly trying to take advantage of her own wrongful abduction.

She had a valid reason for remaining in the UK as the eldest daughter’s situation in the US had become untenable. The separation of the children from their mother further reinforced the creation of a grave risk to their wellbeing.

There was nothing in the circumstances that justified the court exercising its discretion other than by declining to order the children’s return.

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Case Citations: (Children) (Abduction: Article 13(b)), Re Court of Appeal (Civil Division) [2021] EWCA Civ 939

Moylan LJ, Baker LJ, Arnold L

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