P and Q (Rights of Custody, Settlement, Grave Risk of Harm, Objections), Re

P and Q (Rights of Custody, Settlement, Grave Risk of Harm, Objections), Re

The father did not have rights of custody under Colorado law at the time of removal; the mother had sole decision-making responsibility and was entitled to remove the children. Therefore, the removal was not wrongful under Article 3 of the Hague Convention and no obligation to return arises. Even if wrongful, the defences of settlement and grave risk of harm would not succeed, but the children's objections are established and, in the exercise of discretion, a return order would not be made.

Parties
Applicant: A Father; First Respondent: A Mother; Second Respondent (by Her CAFCASS Guardian): P; Third Respondent (by His CAFCASS Guardian): Q
Jurisdiction
England and Wales
Judgment Date
11 October 2024
Procedural Posture
Child Abduction (hague Convention) / Final Judgment
Outcome
Application dismissed
Legal Topics
Hague Convention 1980, Rights of Custody, Summary Return, Grave Risk of Harm, Child's Objections, Settlement, Protective Measures
Family Law International Child Abduction Hague Convention 1980 Rights of Custody Summary Return Grave Risk of Harm Child's Objections Settlement +1 more

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Parties

A Father

Applicant

A Mother

First Respondent

P

Second Respondent (by Her CAFCASS Guardian)

Q

Third Respondent (by His CAFCASS Guardian)

Procedural Posture

Child Abduction (hague Convention) / Final Judgment

Legal Issues

  1. 1 Whether the removal of P and Q from the USA to England was wrongful under Article 3 of the Hague Convention due to breach of rights of custody
  2. 2 Whether the children are settled in England within the meaning of Article 12
  3. 3 Whether there is a grave risk of harm or intolerability under Article 13(b) if returned

Ratio Decidendi

The father did not have rights of custody under Colorado law at the time of removal; the mother had sole decision-making responsibility and was entitled to remove the children. Therefore, the removal was not wrongful under Article 3 of the Hague Convention and no obligation to return arises. Even if wrongful, the defences of settlement and grave risk of harm would not succeed, but the children's objections are established and, in the exercise of discretion, a return order would not be made.

Court Disposition

Application dismissed

Orders

  • No return order is made under the Hague Convention; the children are not to be returned to the USA.