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A (A Child) (1980 Hague Convention: Set Aside) [2021] EWCA Civ 194

This week’s blog is brought to you by Laura Doherty – pupil to Sam Healy 

 A father appealed against a decision to set aside a return order and to dismiss his application for summary return under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention on the civil Aspects of International Child Abduction.

Background

The father was an Italian national, the mother a British national. Although their child was born in England, they moved to Italy shortly after.

The father was not named as the child’s father on the birth certificate when the child’s birth was registered in England. However, when arriving in Italy, the parents attended the office of Municipality and signed a declaration recognising father’s paternity.

In 2019, the Mother returned to England with the child and decided to remain, enrolling the child in school. The father travelled to this jurisdiction to try and resolve matters with the mother and it was agreed at some point that father could collect the child in February 2020 to take him to Italy for the school holidays. However, the mother withdrew her consent and a without notice application was made to prevent the removal of the child from this jurisdiction.

The father then initiated proceedings under the Hague Convention by signing an application the Italian Central Authority for the return of A.

The 1980 Hague Convention proceedings

 24 June 2020, the father’s application, pursuant to the Hague Convention was issued in this jurisdiction in the High Court. It was resisted by the mother and she indicated that if the child were to return to Italy, she would not return with him. She submitted that the father did not have rights of custody and that in any event both Article 13(a) and 13(b) were engaged.

Return Order and Application to set aside

 Expert evidence was heard from an Italian lawyer to confirm that father had rights of custody for the purposes of Art 3 and that mother’s submissions in relation to Article 13(a) and 13(b) were not made out. Accordingly, father’s application for summary return was granted.

The mother applied to stay the return order on the basis that the child had entrenched views on not returning to Italy and that these amounted to a change of circumstances. An application for the child to be joined as a party was also made.

Although the application for the child to be joined as a party was not successful as it was not necessary, proportionate nor in the child’s best interest to be joined as a party in accordance with FPR 16.2. The Judge considered that when applying the four-stage process set out in Re B (A Child) (Abduction: Article 13(b)) [2020] EWCA Civ 1057 that the return order should be stayed and that ‘a reconsideration of the merits of the application for summary return, limited to the defence now raised and pursued of the child’s objections’ should be granted.

Appeal

J Hayden had the view that the Judge had not considered how significant and sustained pressure form the child by his mother could have compromised the authenticity of the child’s expressed views – despite recognising that there was pressure present from the mother.

J Hayden also highlighted that the test as to whether there had been a fundamental change of circumstances had to be set high and that in these set of circumstances the mother’s application was a clear example of an attempt to reargue a case which had already been comprehensively determined.

The appeal was allowed and an order was made for the child’s return to Italy.

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