CB v CB [2013] EWHC 2092 (Fam) (10 April 2013)

CB v CB [2013] EWHC 2092 (Fam) (10 April 2013)

The court found that K was wrongfully retained in England under Article 12, but that he objects to returning to Australia and is of sufficient age and maturity for his views to be considered under Article 13. The court exercised its discretion not to order K's return, giving considerable weight to his rational and...

Source-derived case information.

Citation
[2013] EWHC 2092 (Fam)
Parties
Applicant: CB; Respondent: CB; Guardian: Mr. Bob McGavin (Guardian)
Jurisdiction
England and Wales
Judgment Date
10 April 2013
Procedural Posture
Application Under the Hague Convention on the Civil Aspects of International Child Abduction 1980 / Final Hearing
Outcome
Application for return of the child to Australia dismissed.
Legal Topics
Hague Convention 1980, Child Custody, Habitual Residence, Article 13 Objections, Welfare of the Child
Family Law International Child Abduction Hague Convention 1980 Child Custody Habitual Residence Article 13 Objections Welfare of the Child

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Parties

CB

Applicant

CB

Respondent

Mr. Bob McGavin (Guardian)

Guardian

Procedural Posture

Application Under the Hague Convention on the Civil Aspects of International Child Abduction 1980 / Final Hearing

Legal Issues

  1. 1 Whether the child K was wrongfully retained in England under Article 12 of the Hague Convention
  2. 2 Whether the Article 13 defence (child's objection and maturity) applies to prevent return to Australia
  3. 3 How the court should exercise its discretion in light of the child's objections and welfare

Ratio Decidendi

The court found that K was wrongfully retained in England under Article 12, but that he objects to returning to Australia and is of sufficient age and maturity for his views to be considered under Article 13. The court exercised its discretion not to order K's return, giving considerable weight to his rational and strongly held objections, the transient nature of his residence in Australia, and the welfare implications of a forced return.

Court Disposition

Application for return of the child to Australia dismissed.

Orders

  • Parties to agree future arrangements for K's residence and contact; failing agreement, Guardian to report and matter to be relisted in June.
  • Provision for cancellation of further hearing upon parties filing an agreement.