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Family Law

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11 FEB 2009

ABDUCTION/CARE: Re H (Abduction) [2009] EWHC

(Family Division; Roderic Wood J; 11 February 2009)

The mother and father moved to Spain with the two children when the children were very young. After the mother called the Spanish police to the family home, alleging domestic violence by the father, the parents lived apart, but the family remained in Spain. Subsequently the father pleaded guilty to an act of violence against the mother, and was injuncted from visiting the family home. The mother issued divorce proceedings in Spain; the father was granted contact with the children. However, the mother brought the children to England, ostensibly for a holiday, and then refused to return to Spain. The father issued Hague Convention proceedings seeking summary return of the children. The mother asserted that there was a grave risk that a return would expose both children to physical or psychological harm, or otherwise place the children in an intolerable situation, and that the children, who were both parties to the action, objected to a return. The elder child, now 14, was a very troubled adolescent, with a history of truanting from school; she was, or had very recently been, involved in a sexual relationship with 17 year old with a criminal record. Within the previous year the elder child had taken an overdose of paracetamol, resulting in damage to her kidney and liver. She appeared to be beyond parental control and had abused her mother both verbally and physically. Although she had at one point expressed a desire to return to Spain and the father's care, she was currently threatening to kill herself if ordered to return to Spain. The younger child seemed to have a very poor relationship with the father, and expressed himself as frightened of the father.

Given the truly grave nature of the case, the children would not be summarily returned under the Convention. There was a grave risk that if ordered to return to Spain the elder child would attempt to kill herself. If the younger child were ordered to return to Spain there would be a grave risk to his psychological and emotional development: 'irreparable damage' would be caused to his relationship with both parents; he ought not to be separated from the elder child; and a return to Spain would destroy what little hope remained of repairing the younger child's relationship with the father, whom he genuinely and profoundly feared. There was no need to consider the children's objections, or other defences. The court was extremely concerned about the children; the threshold for the purposes of Children Act 1989, s 38 had been crossed. Hague proceedings were family proceedings for the purposes of the 1989 Act and the court would make an interim supervision order in respect of each child, and furthermore would direct the local authority to prepare a full s 37 report. Pursuant to Brussels II (Revised), Art 15, the court would request the Spanish court to transfer the family's private law proceedings in Spain to England.

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