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Family Law

The leading authority on all aspects of family law

25 JAN 2006

ABDUCTION: Re D (Article 13B: Non-Return) [2006] EWCA Civ 146

(Court of Appeal; Thorpe and Wall LJJ and Coleridge J; 25 January 2006)

The English mother had been the victim of a serious shooting incident in the family home in Venezuela, receiving wounds to her face and right shoulder. The mother suspected that the father had instigated the attack, but the father claimed that he had himself been attacked by unknown assailants for political reasons and that the attack on the mother was probably similar in motive. The mother later removed the children to England, and the father sought the return of the children to Venezuela. The judge refused the father's application, finding that there was a real risk of physical danger to the children in ordering a return to Venezuela, and that their psychological welfare would be put at risk if the mother returned pursuant to an order for the childrens return.

The Court of Appeal was critical of the judge's acceptance of certain elements of the mother's story, given that the mother had achieved her desired goal of removal to England by unlawful means. In weighing the evidence of an abductor seeking to justify or explain conduct, a judge must subject the evidence to rigorous and perhaps sceptical scrutiny. However, the court agreed that in the exceptional circumstances of this case, involving a specific and targeted risk of physical harm to the children and extremely strong evidence of a risk of emotional harm, the children should not be returned. This case involved extremes of violence and of danger which made it almost inevitable that the court would conclude that the children would be at significant risk if returned to Venezuela.

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