M (Children)

M (Children)

The judge at first instance erred in her approach to protective measures, failing to properly consider their adequacy and enforceability in the USA. There was no legitimate basis to doubt the efficacy of US courts and police in enforcing protective measures. The appeal is allowed and the children are to be returned to the USA subject to conditions ensuring protective measures are in place.

Parties
Applicant: Father; Respondent: Mother
Jurisdiction
England and Wales
Judgment Date
09 August 2016
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed
Legal Topics
Summary Return of Children, Protective Measures, Article 13(b) Hague Convention, Domestic Violence, Habitual Residence
Family Law International Child Abduction Summary Return of Children Protective Measures Article 13(b) Hague Convention Domestic Violence Habitual Residence

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Parties

Father

Applicant

Mother

Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether protective measures proposed by the father are adequate to mitigate grave risk of harm under Article 13(b) of the Hague Convention
  2. 2 Whether the judge at first instance correctly applied the legal process for summary return under the Hague Convention

Ratio Decidendi

The judge at first instance erred in her approach to protective measures, failing to properly consider their adequacy and enforceability in the USA. There was no legitimate basis to doubt the efficacy of US courts and police in enforcing protective measures. The appeal is allowed and the children are to be returned to the USA subject to conditions ensuring protective measures are in place.

Court Disposition

Appeal allowed

Orders

  • Children to be returned to the USA immediately, subject to father providing evidence of a consent order entered in the Superior Court of New Jersey and landlord's consent to subletting or assignment of tenancy to mother or her exclusive occupation.