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Family Division, Macur J
Abduction - Mother abducted child and remained with her in Mexico for 4 years - Conciliation agreement for contact with father in UK - Father refused to return child who had been made a ward of court - Whether the child had become habitually resident in Mexico - Whether an order for summary return should be made
19 October 2012
The Mexican mother and English father met and married in the UK and had a child together who was now 6 years old. The family travelled to Mexico for a planned holiday and the father returned in the belief that the mother and child would follow him 2 weeks later. The mother had in fact decided before leaving the UK that the marriage was over and that she would not be returning. The father issued Hague Convention proceedings and his application was forwarded to the Mexican Central Authority but the child remained in Mexico for 4 years due to the mother's subterfuge. The father remained proactive and engaged with legal proceedings in the UK, which secured the child's wardship, and Mexico to bring about his child's return. The mother failed to engage with all proceedings aside from issuing a series of amparos asserting her constitutional rights. The mother was eventually apprehended by police and escorted to a family hearing in Mexico during which a conciliation was agreed whereby the child would remain with the mother and have staying contact with the father in the UK to commence with a period of 3 months contact in the UK. The mother accompanied the father and child to the UK. Upon their return to the jurisdiction the father resurrected the wardship proceedings to prevent the child's removal from the UK and challenged the validity of the agreement entered into in Mexico. The mother relied on the agreement as confirming the child's habitual residence in Mexico and brought Hague Convention proceedings alleging wrongful retention or otherwise seeking summary return of the child under the inherent jurisdiction. The father asserted the UK was the child's place of habitual residence or alternatively that she would be at risk of grave psychological harm or otherwise be placed in an intolerable situation if returned due to paternal alienation.
Held - refusing to order the child's return to Mexico -
(1) Even if the father had consented to the Mexican agreement with the objective indication of consent for change of habitual residence in the future, it was necessary for the mother to establish a subsequent appreciable period of settled residence. The child's habitual residence remained in the UK at the time of her journey from Mexico to the UK and subsequently. The mother's application in Hague proceedings had to fail (see para ).
(2) If the finding on habitual residence were incorrect the court would exercise its discretion under the inherent jurisdiction to refuse an order for return on the grounds of a successful defence under Art 13(b). The range of protective measures on offer in Mexico would not sufficiently protect the child from the risk of significant psychological harm by reason of paternal alienation. The mother's past subterfuge to avoid due process of law in Mexico was sophisticated and planned, aided and abetted by members of her family and influential friends. The ‘usual' safeguards imposed by the court would be inadequate to prevent a further ‘disappearance' in the short term (see paras -).
(3) The court had to be rigorous to scrutinise the jurisdiction and merits of an application seeking wardship in respect of a minor or other vulnerable person. Conferring the status of ward was not and should not be regarded of limited consequence and effect. The court did not merely ‘rubber stamp' the agreements of parents or other parties, however intelligent they may be and whether of full capacity once it had assumed the obligations of parens patriae. That it may have done so on an examination of this case after the event did not act as retrospective consent to fix the child's habitual residence in Mexico at the time of the parents' agreement (see para ).
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