De L v H

De L v H

The court found that the father did not wrongfully retain R on 4 September 2008 as he made genuine efforts to return R, but wrongful retention was established by end of October 2008 when the father ceased cooperation. The mother did not acquiesce in the retention. The grave risk/intolerable situation defence was not made out. R's objections to return were strong, rational, and independently formed, and given his age and maturity, the court exercised its discretion to refuse an order for return under Article 13.

Parties
Applicant: De L; Respondent: H; Subject Child: R (the child)
Jurisdiction
England and Wales
Judgment Date
03 December 2009
Procedural Posture
Hague Convention Child Abduction Application / Final Judgment After Full Hearing
Outcome
Application for summary return refused
Legal Topics
Child Abduction, Hague Convention, Custody, Wrongful Retention, Child's Objections, Acquiescence, Intolerable Situation
Family Law International Law Child Abduction Hague Convention Custody Wrongful Retention Child's Objections Acquiescence +1 more

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Parties

De L

Applicant

H

Respondent

R (the child)

Subject Child

Procedural Posture

Hague Convention Child Abduction Application / Final Judgment After Full Hearing

Legal Issues

  1. 1 Whether the father's retention of R in England was wrongful under the Hague Convention
  2. 2 Whether the mother acquiesced in the retention
  3. 3 Whether there is a grave risk of harm or intolerable situation if R is returned

Ratio Decidendi

The court found that the father did not wrongfully retain R on 4 September 2008 as he made genuine efforts to return R, but wrongful retention was established by end of October 2008 when the father ceased cooperation. The mother did not acquiesce in the retention. The grave risk/intolerable situation defence was not made out. R's objections to return were strong, rational, and independently formed, and given his age and maturity, the court exercised its discretion to refuse an order for return under Article 13.

Court Disposition

Application for summary return refused

Orders

  • No order for R's return to Portugal under the Hague Convention
  • Mother to give undertaking not to pursue criminal complaint in Portugal against the father