A mother has lost her appeal against a court order that her son should be returned to his father in France, despite claiming that the move would put him in an intolerable position and at grave risk.

The parents, who were both French, lived in Paris until 2014 when the child was a few months old.

The father went to Israel in circumstances which amounted to the abandonment of the mother and child.

The mother claimed that the father had been abusive and violent. The father accepted that his behaviour had been erratic on account of his bipolar disorder.

He returned to Paris in 2015. In January 2019, the French court confirmed the child’s residence at his mother’s home and provided for the father to have supervised visiting rights.

The mother brought the child to England with her father on a visit but was unable to leave because of the imposition of “lockdown” resulting from the Covid-19 pandemic. After the initial lockdown restrictions were eased, the mother remained in England and enrolled the child in school.

The father began proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The mother submitted that she would have to live with her father if she returned to France, as she had no other accommodation available to her.

She also submitted that the threshold in art.13(b) of the Convention was met, so that the English courts were not bound to order the child’s return because of a “grave risk” that it would expose him to physical or psychological harm or place him in an intolerable situation.

She stated that she would not go back to France even if the court determined that the child should do so.

The judge rejected the mother’s art.13(b) defence and stated that he would in any event have exercised his discretion to return the child to France because of the lack of family connection with England.

He did not accept that the mother would send the child back to France without her and ordered his return, either with the mother, or with the father and paternal aunt in the event of the mother’s refusal to travel.

The Court of Appeal upheld those decisions.

It held that the judge had considered the recent history from January 2019 onwards and had concluded that there was no suggestion that the accommodation available to the mother with the maternal grandfather was unsatisfactory, or that protective measures offered by the father would not provide sufficient security for herself and the child.

Those factors, coupled with the judge’s observation that she was a loving and devoted mother, led him to conclude that she would not simply refuse to return to France if the child were ordered to do so. That finding was plainly open to him.

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Case Citations: C (A Child) (Child Abduction: Parent’s Refusal to Return with Child), Re Court of Appeal (Civil Division) [2021] EWCA Civ 1216

Sir Andrew McFarlane PFD; Moylan LJ; Arnold LJ

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