B & C, Re

B & C, Re

The removal of the children was wrongful under Article 3 of the Hague Convention as it breached the father's joint custody rights under German law. The Article 13(b) grave risk defence was not established; allegations of harm were not substantiated and protective measures in Germany are sufficient. The mother's refusal to accompany the children is not a genuine consequence of risk but a tactical move. Children's objections are not determinative and are influenced by the mother. The mandatory return to Germany is ordered, subject to protective measures.

Parties
Applicant: C; Respondent: B
Jurisdiction
England and Wales
Judgment Date
04 October 2019
Procedural Posture
Child Abduction and Custody Act 1985 / Hague Convention Application / Final Determination
Outcome
Mandatory return of children to Germany ordered, subject to protective measures.
Legal Topics
Hague Convention 1980, Child Custody, Summary Return, Protective Measures, Children's Objections
Family Law International Child Abduction Hague Convention 1980 Child Custody Summary Return Protective Measures Children's Objections

Case Brief

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Parties

C

Applicant

B

Respondent

Procedural Posture

Child Abduction and Custody Act 1985 / Hague Convention Application / Final Determination

Legal Issues

  1. 1 Whether removal of children from Germany was wrongful under Article 3 of the Hague Convention
  2. 2 Whether Article 13(b) grave risk defence is established
  3. 3 Whether children's objections justify non-return

Ratio Decidendi

The removal of the children was wrongful under Article 3 of the Hague Convention as it breached the father's joint custody rights under German law. The Article 13(b) grave risk defence was not established; allegations of harm were not substantiated and protective measures in Germany are sufficient. The mother's refusal to accompany the children is not a genuine consequence of risk but a tactical move. Children's objections are not determinative and are influenced by the mother. The mandatory return to Germany is ordered, subject to protective measures.

Court Disposition

Mandatory return of children to Germany ordered, subject to protective measures.

Orders

  • Children to return to Germany with mother, subject to protective measures.
  • Children to live with mother until German court orders otherwise.