Facts:
The father made an application for the summary return to Italy of his two children XR, born in December 2017 and aged 6, and XZ, born in May 2020 and aged 3, relying on the Hague Convention of 1980. The children were removed on 19 December 2022 and brought to the UK after the Italian police were involved in handing the children’s passports over in a case which tested whether their habitual residence had changed.
Decision:
Mr Justice Cusworth was very careful and rendered a very detailed judgement. He first explained that, although the evidence was heard virtually, he was satisfied that he gave a fair hearing to both parties as well as being able to carefully analyse all the evidence, including two statements from the father, two from the mother, one from the maternal grandfather alongside some police and CAFCASS evidence. He also acknowledged that the reception of oral evidence was very exceptional in summary hearings but was necessary based on Re K (Abduction: Case Management) [2011]. The evidence clarified the circumstances of the removal.
The case was not classed as a ‘hot pursuit’, as the father only made the application under the Hague Convention in October 2023. Mr Justice Cusworth followed the guidance of the Supreme Court in Re E (Children) [2011] on the Hague Proceedings and the limitations linked to it.
Looking at the question of consent, the Judge followed the opinion of Ward LJ in Re P (A Child) [2004] and held that consent is relevant as a potential defense under Article 13. However, Article 3 of the Convention only requires the courts to look for a prima facie breach.
The Judge turned to the question of the habitual residence of the children under the Convention. The Court found that the relevant time to determine the habitual residence of the children was the 19th or 20th of December 2022 when the mother was informed that the father did not consent to the removal of the children from Italy. The Court used the Re B (A Child) (Custody Rights: Habitual Residence) [2016] test which places the child at the centre of the exercise when determining his or her habitual residence. The Judge looked at the jurisprudence on the degree of ‘integration’ required and held that, based on the evidence and, despite the children being in Italy for the last 6 months of 2022, they did not integrate into social and family life in Italy. Therefore, their habitual residence was still the UK and there was no breach under Article 3 of the Convention.
Despite the finding that there was no breach of the Convention and any order for the children to go live in Italy would have had to go through English courts first, the Judge gave his findings on the other issues. He found that the consent of the father was not clear and unequivocal. Regarding the alleged abuse, the Judge would have accepted this and found that the protective measures offered by the father would not have been sufficient for the court to order the return of the children.
Implications:
This case confirmed the careful approach taken by UK courts in dealing with potential international child abduction. The Judge made it clear that, just because children have lived in a country for the last 6 months, this does not mean that they have successfully integrated into social or family life there.
The amount of evidence required in such a case is quite high. The fact that the Father started proceedings 10 months after the removal was also not in his favour.