KL v PQ -[2024] NIFam 13- (08 May 2024)

Key Facts

Issues

• Whether the court should exercise its discretion to order the return of the children to the European country despite findings of settlement and grave risk, considering the Convention's policy objectives and the children's welfare.
• Whether the mother can establish exceptions under Article 13 of the Hague Convention, including that the father was not exercising custody rights at the time of removal, or that returning the children would expose them to a grave risk of physical or psychological harm.
• Whether the children are settled in Northern Ireland under Article 12 of the Hague Convention, given their four-year residence and integration into local schools, social networks, and medical care.

Holdings

• The court dismissed the father's application for a return order, concluding it would be perverse to exercise discretion for return given the findings on settlement and grave risk.
• The court found a grave risk under Article 13(b) that returning the children to the European country would expose them to psychological harm and place them in an intolerable situation due to their established needs and integration in Northern Ireland.
• The court determined that the children are settled in Northern Ireland under Article 12 of the Hague Convention, as they have been physically present for over four years, attended school continuously, and are emotionally and psychologically integrated into their new environment.
• The children's objection to being returned was not proven, as there was insufficient evidential basis to conclude that each child objects to return.
• The mother failed to prove under Article 13(a) that the father was not exercising custody rights at the time of removal or that he consented to or acquiesced in the retention of the children in Northern Ireland.

Remedies

• The court dismissed the father's application for a return order under the Hague Convention, concluding that the children are settled in Northern Ireland and that there is a grave risk of psychological harm if returned.
• The usual costs order was issued, though specific details are not outlined in the judgment.

Legal Principles

• The court emphasized that the mother, as the party opposing the child's return, has the burden of proof to establish exceptions under Article 13 of the Hague Convention. This includes demonstrating that the father was not exercising custody rights at the time of removal (Article 13(a)) or that returning the children would expose them to a grave risk of harm (Article 13(b)). The judgment notes that the mother failed to meet this burden regarding consent/acquiescence but succeeded in proving the grave risk exception.
• The court clarified that exceptions under Article 13 of the Hague Convention are assessed using the balance of probabilities standard. While the mother failed to prove consent/acquiescence (leaving the court uncertain), she successfully demonstrated a grave risk of psychological harm to the children if returned, satisfying the required standard for the Article 13(b) exception. The judgment underscores that this standard applies despite the summary nature of Hague Convention proceedings.

Precedent Name

• In Re R (Child Abduction: Acquiescence)
• C v C
• In Re N (Minors) (Abduction)
• In Re H (Minors) (Abduction: Acquiescence)
• In Re S (Minors) (Abduction: Acquiescence)
• In Re C (Abduction: Consent)
• Re T (A Child - Hague Convention proceedings)
• Cannon v Cannon
• AX v CY
• Re M (Zimbabwe)
• In Re M and another (Children) (Abduction: Rights of Custody)
• FE v YE
• In Re D
• ES v LS
• Re E (Children) (Abduction: Custody Appeal)

Cited Statute

• Child Abduction and Custody Act 1985
• Council Regulation (EC) No 2201/2003
• Convention on the Civil Aspects of International Child Abduction 1980

Judge Name

Passage Text

• I am satisfied that the mother has made out, on the balance of probabilities, the exception, or defence, in sub-paragraph (b) of article 13 of the Convention.
• I am satisfied first, that there is a grave risk that the return of each child would inevitably expose each to psychological harm and would place each of the children in this case in an intolerable situation.
• I am satisfied that the children are settled in Northern Ireland.