H Children, Re

H Children, Re

The Court of Appeal found that the trial judge erred in concluding, on untested evidence, that the father was an uncontrollable risk and that Belgian authorities would not protect the children. The evidence showed ongoing involvement of Belgian agencies, and there was no compelling basis to assume the children would...

Source-derived case information.

Parties
Applicant: Applicant Father; Respondent: Respondent Mother
Jurisdiction
England and Wales
Judgment Date
20 March 2003
Procedural Posture
Civil Appeal (family Law Child Abduction) / Appeal From High Court Family Division to Court of Appeal
Outcome
Appeal allowed
Legal Topics
Child Abduction, Hague Convention, Custody, Grave Risk Exception, Habitual Residence
Family Law International Law Child Abduction Hague Convention Custody Grave Risk Exception Habitual Residence

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Parties

Applicant Father

Applicant

Respondent Mother

Respondent

Procedural Posture

Civil Appeal (family Law Child Abduction) / Appeal From High Court Family Division to Court of Appeal

Legal Issues

  1. 1 Whether the return of the children to Belgium would expose them to a grave risk of harm under Article 13(b) of the Hague Convention
  2. 2 Whether the Belgian authorities would provide adequate protection for the children upon return
  3. 3 Whether the trial judge erred in refusing to order the return of the children

Ratio Decidendi

The Court of Appeal found that the trial judge erred in concluding, on untested evidence, that the father was an uncontrollable risk and that Belgian authorities would not protect the children. The evidence showed ongoing involvement of Belgian agencies, and there was no compelling basis to assume the children would not be protected upon return. The Article 13(b) threshold was not met to justify non-return. The appeal was allowed, and the case remitted for arrangements to ensure a safe return.

Court Disposition

Appeal allowed

Orders

  • Remit the case to a High Court judge (other than Singer J) for directions to arrange the return of the children to Belgium.
  • Set aside the order of the court at Walcourt of 8th May 2002 giving sole parental rights to the father.