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Family Law

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26 JUL 2007

ABDUCTION: M v M

(Family Division; Roderic Wood J; 26 July 2007)

The mother, the man she claimed was her husband and the children were living in the UK with no lawful right to be there. The children's father applied under the Child Abduction and Custody Act 1985 and the Convention on the Civil Aspects of International Child Abduction dated 25 October 1980 (the Hague Convention) for return of the children to Zimbabwe, their (and the mother and father's) country of birth.

After the mother and father married in 2000 in Zimbabwe the relationship broke up and the mother left the children with the father. The mother left Zimbabwe, returning in 2004 when she argued that the father had consented to the plan she proposed which was that she would take the children to live in the UK with her new husband. The father argued that he consented to the children going with their mother for a short period of staying contact. It was only when they did not return that he discovered the mother had taken them to the UK. The father sought legal advice immediately but was not made aware of the Hague Convention until he read a newspaper article six months after the mother took the children to the UK. He immediately commenced Hague Convention proceedings.

The mother raised various defences including 'settlement' (Art 12), 'consent' and 'acquiescence' (Art 13 (a)), 'grave risk' (Art 13 (b)) and the children's objections (Art 13).

The judge found the mother to be devious and untrustworthy and could therefore place little or no confidence in her evidence. He found the father to be measured, frank and trustworthy.

On the evidence there was no doubt that the mother was planning to remove the children from Zimbabwe for many months before she did so and knew that she would never obtain the father's consent. There was no evidence that the father acquiesced to the removal of the children. Neither was the defence of grave risk/intolerability made out. The children were, however, settled in the UK within the meaning of Art 12 of the Hague Convention. Having considered the children's objections, there was nothing in the case which would qualify it as exceptional and the judge declined to exercise his discretion under Art 18 against a return. The father's undertakings would be accepted and the children would be ordered to return to Zimbabwe.

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