Court refuses to return child to father under Hague Convention

The Family Court has refused to return a four-year-old boy to his father in the United States even though his mother had taken him to England unlawfully.

The case involved a mother who had emigrated to the United States and acquired dual citizenship.

The father was a US citizen.

The couple had separated before their son’s birth in June 2017. The father began divorce proceedings in his local county circuit court, and for orders in respect of the son, referred to as M.

The case was allocated to a specific US judge who refused the mother’s application to transfer the proceedings to a court more local to her. The mother developed a perception that the US judge was biased against her.

In April 2019, she travelled to England with M and then deliberately went into hiding for two years, living with friends and family.

In June 2021, the US judge granted the father sole custody of M and made a financial order against the mother which in her view stripped her of her substantial pre-marital assets.

As a result, she developed a consuming belief that she would not obtain a fair hearing before the US judge, and she subsequently filed an official complaint to the local judicial board.

The father applied to the Family Court in England for M to be returned to the US under the Hague Convention on the Civil Aspects of International Child Abduction 1980 art.12.

The court heard evidence from the jointly instructed child and adolescent psychiatrist that M appeared to have traits in keeping with an autism spectrum disorder (ASD) diagnosis.

This meant that changes to his routine and living arrangements would result in increased anxiety levels; that any separation from his mother would be extremely harmful and exacerbate his emotional and behavioural problems; and that there was likely to be a disastrous impact on his emotional development if she did not return to the US with him.

In oral evidence, the psychiatrist described that impact as catastrophic.

The court rejected the father’s application to have M returned to the US.

It held that under the Convention, M should be returned unless the mother could establish the defence under art.13(b) that there was a grave risk M would be exposed to psychological harm or otherwise placed in an intolerable situation. 

Based on the expert evidence, if M was separated from his mother there was a grave risk, if not a certainty, that he would be exposed to psychological harm and placed in an intolerable situation.

The mother was not prepared to return to the US because she feared she would end up in prison as the FBI had an active case on her, that M would be taken from her, that she would be unable to obtain employment in the small town where she lived or to make friends as social media had portrayed her as a kidnapper, and that she could not obtain legal representation at the local court as most of her funds had been seized.

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P (Child), Re
Family Division
17 November 2021
Holman J