W v W

W v W

The removal was wrongful under Article 3 of the Hague Convention. The Article 13(b) defence was not established as the evidence did not meet the high threshold of grave risk of harm or intolerable situation to the child. The child’s objections were not overriding and were primarily based on concern for her mother, not a fundamental objection to return to South Africa. Protective measures and undertakings were ordered to mitigate risks. Return is ordered subject to strict conditions.

Parties
Applicant: Clint W; Respondent: Melanie W
Jurisdiction
England and Wales
Judgment Date
28 May 2004
Procedural Posture
Child Abduction and Custody (hague Convention) / Judgment After Contested Application for Return of Child
Outcome
Return of the child to South Africa ordered, subject to compliance with protective measures and undertakings.
Legal Topics
Child Abduction, Hague Convention, Custody, Domestic Violence, Child Welfare
Family Law International Law Child Abduction Hague Convention Custody Domestic Violence Child Welfare

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Parties

Clint W

Applicant

Melanie W

Respondent

Procedural Posture

Child Abduction and Custody (hague Convention) / Judgment After Contested Application for Return of Child

Legal Issues

  1. 1 Whether the removal of the child from South Africa to England was wrongful under Article 3 of the Hague Convention
  2. 2 Whether the Article 13(b) defence (grave risk of harm/intolerable situation) is established to prevent return
  3. 3 Whether the child objects to return and is of sufficient age and maturity for her views to be considered

Ratio Decidendi

The removal was wrongful under Article 3 of the Hague Convention. The Article 13(b) defence was not established as the evidence did not meet the high threshold of grave risk of harm or intolerable situation to the child. The child’s objections were not overriding and were primarily based on concern for her mother, not a fundamental objection to return to South Africa. Protective measures and undertakings were ordered to mitigate risks. Return is ordered subject to strict conditions.

Court Disposition

Return of the child to South Africa ordered, subject to compliance with protective measures and undertakings.

Orders

  • Return of S to South Africa only after all protective measures in the annex are complied with, including interim custody to the mother, non-molestation and non-harassment orders, psychiatric assessments, financial provision for maintenance and legal costs, and travel arrangements.
  • No order as to costs.