S (A Child : Hague Convention 1980 : Return To Third State)

S (A Child : Hague Convention 1980 : Return To Third State)

The order for return to Hungary was, in effect, a welfare determination made without a welfare assessment, and the judge's reasoning as to the efficacy of the protective undertakings was insufficient. The undertakings' enforceability and the Hungarian court's jurisdiction were not established. Therefore, the order could not stand and the application under the 1980 Convention was dismissed.

Parties
Subject: S (A Child); Appellant: Father; Respondent: Mother; Intervener: The International Centre for Family Law, Policy and Practice
Jurisdiction
England and Wales
Judgment Date
07 March 2019
Procedural Posture
Appeal (hague Convention Child Abduction) / Judgment on Appeal From High Court, Family Division
Outcome
Appeal allowed; application under the 1980 Convention dismissed
Legal Topics
Child Abduction, Hague Convention 1980, Return to Third State, Protective Measures, Jurisdiction, Parental Responsibility
Family Law International Law Child Abduction Hague Convention 1980 Return to Third State Protective Measures Jurisdiction Parental Responsibility

Case Brief

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Parties

S (A Child)

Subject

Father

Appellant

Mother

Respondent

The International Centre for Family Law, Policy and Practice

Intervener

Procedural Posture

Appeal (hague Convention Child Abduction) / Judgment on Appeal From High Court, Family Division

Legal Issues

  1. 1 Whether the court can order the return of a child to a third state under the 1980 Hague Convention
  2. 2 Whether the judge erred in ordering return to Hungary instead of the child's habitual residence (Germany)
  3. 3 Whether the protective undertakings offered by the father were sufficiently robust and enforceable to ameliorate grave risk under Article 13(b)

Ratio Decidendi

The order for return to Hungary was, in effect, a welfare determination made without a welfare assessment, and the judge's reasoning as to the efficacy of the protective undertakings was insufficient. The undertakings' enforceability and the Hungarian court's jurisdiction were not established. Therefore, the order could not stand and the application under the 1980 Convention was dismissed.

Court Disposition

Appeal allowed; application under the 1980 Convention dismissed

Orders

  • Order for return of the child to Hungary set aside
  • No further order under the 1980 Convention