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Reported Case

Success in international child abduction case: H (Abduction: Retention In Non-Contracting State), Re [2019] EWCA Civ 672 (16 April 2019) (11 July 2019)

Date: 11/07/2019
Duncan Lewis, Reported Case Solicitors, Success in international child abduction case: H (Abduction: Retention In Non-Contracting State), Re [2019] EWCA Civ 672 (16 April 2019)

International family law solicitor Helen Newman and child care solicitor Rebecca Slee have recently succeeded in obtaining the return of a child to Australia after she had been in the UK for 15 months.

This first instance case in the High Court was an instruction from the applicant Mr. H through the International Child Abduction and Contact Unit. It was a wrongful retention from Australia, a Hague Convention country, within the meaning of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The retention had taken place in Uganda, a non-Convention county, in January 2018 during a family holiday. The father and mother subsequently brought the child to the UK jurisdiction, a Hague Convention country where the mother separated from the father and was given accommodation by a local authority. There had been domestic violence in Australia and the mother issued non-molestation proceedings in the UK which were concluded with undertakings being given by the father, who was unrepresented at the time.

The father made his Hague application very near to the end of one year because he had contracted a serious illness whilst in Uganda. Proceedings had been issued by Helen Newman at her previous firm before the expiry of one year from the date of the retention so as to avoid the possibility of an Article 12 settlement issue being raised by the mother.

The final hearing was listed for two days, 28 February and 1 March 2019 respectively but concluded on the first day. Mostyn J made an order for the return of the child to Australia having accepted undertakings from the father to overcome the mother’s arguments under Article 13b and so that protective measures were in place on the child’s return. He found that the wrongful retention had in fact occurred in January 2018 when the parties were on an agreed holiday in Uganda. They had gone there to visit the mother's family and had return tickets to Australia. During that time the mother indicated that she would not return the child to Australia.

Having sought advice from the Australian authorities the father agreed that the family could come to England. The mother is a British national but the father and child are Australian nationals, although it was argued that the child has dual British nationality. The father and child had however entered the UK on Australian passports and were granted a six month Visa.

During their time in this country the relationship broke down and the mother refused to return the child to Australia at the expiry of the six-month period. The father then made a 1980 Hague Convention application requesting the return of the child to Australia.

The mother applied for permission to appeal against the return order to the Court of Appeal. This was granted on paper. The oral hearing took place on 11 April 2019. The mother had tried to argue, inter alia, that, even though the country of habitual residence (Australia) and the country to which the child was subsequently brought (England) were Hague Convention countries, as the retention had taken place in an non Hague country (Uganda) the retention did not continue to be a “justiciable retention”.

The Lord Justices unanimously dismissed the mother's appeal and upheld the decision of Mostyn J to return the child to Australia. An application made on paper to the Court of appeal for permission to appeal to the Supreme Court of the United Kingdom was refused.

The mother then made an application to the Supreme Court of the United Kingdom for permission to appeal but that application was refused on the grounds that the application did not raise an arguable point of law.


Outcome

Our client had a positive outcome in this case and the child was returned to Australia on a direct flight by 27 June 2019.


Representation

The client was represented by solicitor supervisor Helen Newman and solicitor Rebecca Slee.

Helen is a supervising solicitor based in the Duncan Lewis Tonbridge office. She is a prominent solicitor practicing in international child abduction for over 40 years; having had a case heard in the Court of Justice of the European Union which is now firmly embedded into English national law. Alongside her work concerning international child abduction, she undertakes other aspects of cross border and children law including relocation, wardship, care proceedings, and children cases with an international element. She is the longest serving solicitors on the International Child Abduction and Contact Unit (ICACU) the child abduction accredited solicitors’ referral list, and is a founding member of the Child Abduction Lawyers’ Association (CALA).

To contact Helen please call 020 7923 8533 or email Helenn@Duncanlewis.com.


Child care solicitor Rebecca is based in the Duncan Lewis Croydon office. She has experience in a wide range of child care matters and regularly deals with both privately and publicly funded (legal aid) matters. Many of her cases have an international element and she regularly handles cases that involve child abduction, cross border contact arrangements, applications for leave to remain from the jurisdiction and care proceedings where the children and parents involved are foreign nationals.

To contact Rebecca please call 020 7923 8520 or email RebeccaSl@Duncanlewis.com.


 

Find full details of this case on Bailii’s website here.
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