Category: Children

Bradbrooke v Aleksandrowicz: ECJ 9 Jan 2015

ECJ Preliminary reference – Urgent preliminary ruling procedure – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – Child Abduction – Regulation (EC) No 2201/2003 – Article 11 Paragraphs 7 and 8

C-498/14, [2015] EUECJ C-498/14, ECLI:EU:C:2015:3, [2014] EUECJ C-498/14 – V
Bailii, Bailii
European

Children

Updated: 25 December 2021; Ref: scu.541403

Hoholm v Slovakia: ECHR 13 Jan 2015

The applicant alleged in particular that, contrary to the requirements of Article 6.1 of the Convention, he had been denied a hearing within a reasonable time in respect of the claim he had lodged in Slovakia for the return of his children (‘the children’) to the Kingdom of Norway under the Convention on the Civil Aspects of International Child Abduction

Josep Casadevall, P
35632/13 – Chamber Judgment, [2015] ECHR 19
Bailii
European Convention on Human Rights

Human Rights, Children, International

Updated: 25 December 2021; Ref: scu.541371

Re A (Withdrawal of Applications): FD 21 Mar 2019

‘whether I should permit the applicant local authority to withdraw its applications for female genital mutilation protection orders with respect to all five girls, for a forced marriage protection order with respect to A, and for orders pursuant to the inherent jurisdiction. ‘

The Honourable Mrs Justice Knowles DBE
[2019] EWHC 709 (Fam)
Bailii
England and Wales

Children, Local Government

Updated: 25 December 2021; Ref: scu.639736

E v E (Anti-Suit Injunction; Children): FD 31 Mar 2021

Whether to make, on the application of the Mother (‘M’), an anti-suit injunction against the Father (‘F’) requiring him to discontinue Nigerian proceedings pursued by him in respect of the parties’ three children in circumstances where Lieven J determined after a contested hearing that (i) the courts of this country have jurisdiction over the children by reason of their habitual residence, (ii) England and Wales, rather than Nigeria, is the natural forum and (iii) the English court is substantively seized of ongoing proceedings concerning wardship and the welfare of the children.

Mr Justice Peel
[2021] EWHC 956 (Fam), [2021] WLR(D) 221, [2021] 4 WLR 67
Bailii, WLRD
England and Wales

Children

Updated: 25 December 2021; Ref: scu.663789

LB Waltham Forest v X, Y, Z and Others (Inherent Jurisdiction): FD 3 Apr 2019

Without notice application by the local authority which sought permission to invoke the inherent jurisdiction of the High Court and thereafter orders in wardship in respect of two girls, M and K. The local authority sought an order for their summary return to this jurisdiction together with Forced Marriage Protection Orders and Female Genital Mutilation Protection Orders.

The Honourable Mrs Justice Knowles
[2019] EWHC 846 (Fam)
Bailii
England and Wales

Children

Updated: 25 December 2021; Ref: scu.639746

Re R (A Child): CA 3 Dec 2014

F appealed against an order (i) that R should reside with her mother, the respondent; (ii) that there should be no order for contact with her father; and (iii) that the previous orders made for indirect contact should be discharged. The order provided that R might make such contact with her father as she considered appropriate, and required the mother to support and assist the child should she wish to make contact with her father. It also contained provision for the sending of school reports and photographs each year and keeping the father informed if R was seriously ill and informing the father of her address.

Christopher Clarke, Patten, Macur LJJ
[2014] EWCA Cic 1664
Bailii
England and Wales

Children

Updated: 24 December 2021; Ref: scu.540494

BG, Regina (on The Application of) v West Midlands Constabulary and Another: Admn 23 Dec 2014

Renewed application for judicial review, following initial refusal, raising questions of considerable importance for juveniles when they are kept at police stations prior to being brought before the criminal courts in this country.

Fulford LJ, Nicol J
[2014] EWHC 4374 (Admin)
Bailii
England and Wales

Children, Police

Updated: 24 December 2021; Ref: scu.540473

In re P, Q, R and S (Children): FC 5 Dec 2014

Applications for adoptive placment.
Held: ‘P, Q, R and S have suffered and are likely to suffer significant harm, which harm or likelihood of harm is attributable to the care given to the children or likely to be given to them if the order was not made not being what it would be reasonable to expect a parent to give to them. The court is satisfied of this because it finds that the children have experienced family life shaped by inadequate parenting, such that their physical and emotional needs including their need for stability and consistency have been neglected, and as a result the children have suffered. In particular:
1. The parents’ relationship is volatile and chaotic. It involves serious allegation and counter allegation followed by withdrawal and reconciliation.
2. The children have frequently been present and involved in the situation when one parent makes allegations against the other and these are often in aggressive terms.
3. The children have experienced instability at home as a result of parental conflict, home moves, change of carer and separation from siblings.
4. The parents’ relationships with professionals are volatile and chaotic. The parents’ refusal to work with professionals has impacted negatively upon the children’s welfare.
5. The children have lived with parents whose mental health/emotional stability significantly fluctuates. Their mental health difficulties have impacted upon their ability to meet the needs of their children consistently.
6. All of the above has had a significant and negative impact on the emotional and physical welfare of the children. All the children have had their welfare neglected and have suffered harm whilst in the care of their parents.
7. The parents have shown no acceptance or understanding of the inadequacies in the way they way they have parented their children or the adverse impact this has had and would have in the future on their children. It is therefore likely that if the children return to the care of their parents they will suffer further emotional and physical harm as a result of neglect of their welfare needs.’

Lynch HHJ
[2014] EWFC B166
Bailii
England and Wales

Children

Updated: 24 December 2021; Ref: scu.540395

Re C (Children Appeal): FC 30 May 2014

Application by the father for permission to appeal as to whether care orders in respect of the children should be discharged with the result the children could return to live with their father; whether the section 34(4) order should be discharged so that the children could have direct contact with their father; and thirdly, whether upon the Guardian’s application an order under section 91(14) should be made by the court of its own motion so that the father may not issue any further applications under the Children Act without leave of the court.

Eaglestone HHJ
[2014] EWFC B163
Bailii
Children Act 1989

Children

Updated: 24 December 2021; Ref: scu.540366

J and E (Children: Brussels II Revised: Article 15): FC 11 Nov 2014

The local authority applied to the court for care orders and placement orders in respect of two young girls. The parents opposed the local authority’s applications. The mother was Hungarian. The father was Hungarian/Roma. The mother applied under Article 15(2)(a) of the Regulation for an order requesting that the Hungarian court should assume jurisdiction with respect to these proceedings. The local authority and the Children’s Guardian opposed the making of such an order.
Held: The court acceeded to the request for the transfer under article 15. Having considered the several factors pointing either way, As to delay, although it was inevitable that there would be some further delay in settling the children’s future if the case were transferred, and he did not know what the extent of that would be, it had to been seen in the context of the significant delay so far, much of which was attributable to the local authority. He was not therefore persuaded that significant weight should be attached to it. However, the Hungarian court was better placed to hear the case. He attached particular weight to the potential for contact with siblings.

Bellamy HHJ
[2014] EWFC 45
Bailii
Council Regulation (EC) 2201/2003
England and Wales
Citing:
Cited – In re J (A Child: Brussels II revised: Article 15: Practice and Procedure) FC 29-Oct-2014
Application to transfer children proceedings to anoher member state (Hungary)
Held: The order should be made. A Hungarian court might better be able to facilitate contact with siblings living there. . .

Cited by:
At FC – Re N (Children : Adoption: Jurisdiction) CA 2-Nov-2015
Appeal against care and placement order proceedings in relation to two Hungarian children, The orders were for the transfer of the case to Hungary.
Held: The appeal was dismissed. As to Article 15, the Court considered: What are the . .
At FC – In Re N (Children) SC 13-Apr-2016
The Court considered whether the future of two little girls, aged four and two years, should be decided by the courts of this country or by the authorities in Hungary. Both children were born in England and lived all their lives here. But their . .

Lists of cited by and citing cases may be incomplete.

Children, European

Updated: 24 December 2021; Ref: scu.539730

In re J (A Child: Brussels II revised: Article 15: Practice and Procedure): FC 29 Oct 2014

Application to transfer children proceedings to anoher member state (Hungary)
Held: The order should be made. A Hungarian court might better be able to facilitate contact with siblings living there.

Pauffley J
[2014] EWFC 41
Bailii
England and Wales
Cited by:
Cited – In Re N (Children) SC 13-Apr-2016
The Court considered whether the future of two little girls, aged four and two years, should be decided by the courts of this country or by the authorities in Hungary. Both children were born in England and lived all their lives here. But their . .
Cited – J and E (Children: Brussels II Revised: Article 15) FC 11-Nov-2014
The local authority applied to the court for care orders and placement orders in respect of two young girls. The parents opposed the local authority’s applications. The mother was Hungarian. The father was Hungarian/Roma. The mother applied under . .

Lists of cited by and citing cases may be incomplete.

Children

Updated: 24 December 2021; Ref: scu.539728

SP (Father) v EB (Mother) and Another: FD 26 Nov 2014

Judgment on the applicant father’s application for an order that his daughter Kate, who is now aged 14, be returned forthwith to Malta pursuant to Article 12 of the Hague Convention on the International Aspects of Child Abduction 1980, as incorporated domestically by the Child Abduction and Custody Act 1985.
Held: Mostyn J said: ‘there is no need for the judge to ‘incant mechanically’ passages from the authorities, the evidence or the submissions, as if he were ‘a pilot going through the pre-flight checklist.’

Mostyn J
[2014] EWHC 3964 (Fam), [2016] 1 FLR 228
Bailii
Child Abduction and Custody Act 1985, Hague Convention on the International Aspects of Child Abduction 1980
England and Wales
Cited by:
Cited – Owens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 24 December 2021; Ref: scu.539462

O v P: FD 5 Aug 2011

Preliminary issue arising in these proceedings in which a mother, ‘O’, seeks an order against her former partner, ‘P’, for financial relief under Schedule 1 to the Children Act 1989 in respect of their daughter, ‘S’

Mr Justice Baker,
(In Private)
[2011] EWHC 2425 (Fam), [2012] 1 FLR 329
Bailii
England and Wales

Children

Updated: 24 December 2021; Ref: scu.445468

AR, Re An Order Under The Child Abduction and Custody Act 1985: SCS 14 Nov 2014

(Extra Division, Inner House – Opinion of Lord Malcolm) – appeal in application for order of return of two children to their father in France. The partis disputed whether Scotland had become habitually resident in Scotland, and also whether the father had consented to their removal to Scotland.
Held: The Lord ordinary granted the appeal against the order in favour of the father. The Lord Ordinary had erred in law in treating a shared parental intention to move permanently to Scotland as an essential element in any alteration of the children’s habitual residence from France to Scotland. This error had deflected him from a proper consideration of the factors relied upon by the mother. Considering the matter afresh, in the light of the guidance provided by the Supreme Court, the Division now concluded that the children were habitually resident in Scotland at the material time: ‘If the salient facts of the present case are approached in accordance with the guidance summarised earlier, the key finding of the Lord Ordinary is that the children came to live in Scotland. The real issue is whether there was a need for a longer period in Scotland before it could be held that there had been a change in their habitual residence. For our part, in the whole circumstances we would view four months as sufficient.’

Lady Paton, Lord Drummond Young, Lord Malcolm
[2014] ScotCS CSIH – 95, 2015 SCLR 215, 2015 SC 310, 2014 SLT 1080, 2014 GWD 37-686, [2014] Fam LR 131
Bailii
Child Abduction and Custody Act 1985
Citing:
Appeal from – In Re AR (An Order Under The Child Abduction And Custody Act 1985) SCS 17-Jun-2014
The two girls were with their mother in Scotland. The father, living in France, sought their return to France:
Held: The court granted the father’s application. The Lord Ordinary: ‘After considering all the relevant evidence I am satisfied . .

Cited by:
Appeal from – AR v RN (Scotland) SC 22-May-2015
The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of . .

Lists of cited by and citing cases may be incomplete.

Scotland, Children

Updated: 23 December 2021; Ref: scu.539141

Falk v Sinclair: 2010

The question was whether having removed child to another country by agreement, and later deciding to stay, there is then and there a wrongful retention, or whether his retention of the child cannot in law be wrongful until the date agreed for return arrives.
Held: ‘the aeroplane lands and the child is not among those who disembark.’

(2009) 692 F Supp 2d 147
United States
Cited by:
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .
Cited – NY (A Child : 1980 Hague Abduction Convention : Inherent Jurisdiction) CA 18-Jun-2019
M appealed from an order ordering the summary return of a girl to Israel. . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 23 December 2021; Ref: scu.654500

H v The United Kingdom: ECHR 9 Jun 1988

Hudoc Violation of Art. 6-1; Violation of Art. 8; Just satisfaction reserved
Hudoc Judgment (Just satisfaction) Costs and expenses – struck out of the list (friendly settlement); Non-pecuniary damage – financial award
Article 8 was infringed by delay in the conduct of access and adoption proceedings because the proceedings ‘lay within an area in which procedural delay may lead to a de facto determination of the matter in issue’, which was precisely what had occurred.

[1987] 10 EHRR 95, 9580/81, [1988] ECHR 9, [1987] ECHR 14
Worldlii, Worldlii, Bailii, Bailii
European Convention on Human Rights 8
Human Rights
Cited by:
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Children

Updated: 23 December 2021; Ref: scu.165017

In re G (A Minor) (Enforcement of Access Abroad): CA 1993

The Convention did not provide for mutual enforcement of access rights, and when determining matters of access relating to access to children to whom the Convention applied English courts are entitled to apply the Children Act 1989, and to consider the child’s welfare as paramount. F’s child was brought by M to live in England with the permission of a Canadian court. He applied to the English authorities for the enforcement of access rights which have been granted him by the Canadian Court, stating that his access to the child should take place in Canada. M argued that the Convention did not apply to the child, and that the courts should apply English law.
held that one the convention did apply to a child who was a bit really resident in a contracting state immediately before the beach of access arrangements BVB Minors enforcement of access abroad 1988 considered to the convention did not provide for the enforcement of access arrangements enforcement of access rights, and therefore domestic law should be applied by the English courts making the Paramount consideration that the child’s welfare full stop the father would therefore be granted access, but only in England, not in Canada.

[1993] 2 WLR 824, [1993] Fam 216, [1993] 3 All ER 657, [1993] 1 FLR 669
Convention on the Civil Aspects of International Child Abduction
England and Wales
Cited by:
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 23 December 2021; Ref: scu.654499

In re H (Minors): CA 20 Aug 1990

The Hague Convention did not apply to wrongful acts of removal which had taken place before the 1985 Act came into force.
Lord Donaldson MR said: ‘plainly the Act and Convention can only apply if the child is found in a different State from that in which it was habitually resident’

Lord Donaldson MR
Independent 20 August 1990
Child Abduction and Custody Act 1985, Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980)
England and Wales
Cited by:
Appeal from – In Re H (Minors) (Abduction: Custody Rights) HL 1991
The House addressed the question whether wrongful removal and wrongful retention were mutually exclusive concepts. The issue arose in the context of the commencement date for the 1985 Act as between the two States involved.
Held: For the . .
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .

Lists of cited by and citing cases may be incomplete.

Children

Updated: 23 December 2021; Ref: scu.654498

Re P and O (Child Abduction: Anticipatory Breach): FD 10 Nov 2016

M and children had come back to England from Australia, and had F’s consent to stay for another year. She then applied for British Citizenship for the children without F’s knowledge. F now sought their return.
Held: The children had become habitually resident in the UK. There was no concept of repudiatory retention known to the law. The application to the immigration authorities did not amount to such a repudiatory retention, because although it was concealed from F, something had to be done to regularise the stay of the children once it was to last more than their six month visas permitted. F could not properly have objected to such regularisation, even if M feared that he might have tried.

His Honour Judge Clifford Bellamy
[2016] EWHC 3535 (Fam)
Bailii
Hague Convention on the Civil Aspects of International Child Abduction, Child Abduction and Custody Act 1985
England and Wales
Cited by:
Appeal from – In Re C (Children) CA 12-Jul-2017
F appealed against refusal of an order requiring M to return their two children to Australia. . .
At FD – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 23 December 2021; Ref: scu.654120

Re B (A Minor : Habitual Residence): FD 24 Aug 2016

Hayden J said: ‘In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move.’

Hayden J
[2016] EWHC 2174 (Fam), [2016] 4 WLR 156, [2016] WLR(D) 471
Bailii, WLRD
Child Abduction and Custody Act 1985, Council Regulation (EC) No 2201/2003
England and Wales
Cited by:
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .

Lists of cited by and citing cases may be incomplete.

Children

Updated: 23 December 2021; Ref: scu.569170

In Re C (Children): CA 12 Jul 2017

F appealed against refusal of an order requiring M to return their two children to Australia.

Black, Sharp, Thirlwall LJJ
[2017] EWCA Civ 980, [2018] 1 All ER 476, [2018] 1 FLR 186, [2017] 3 FCR 719, [2017] WLR(D) 479
Bailii, WLRD
Child Abduction and Custody Act 1985
England and Wales
Citing:
Appeal from – Re P and O (Child Abduction: Anticipatory Breach) FD 10-Nov-2016
M and children had come back to England from Australia, and had F’s consent to stay for another year. She then applied for British Citizenship for the children without F’s knowledge. F now sought their return.
Held: The children had become . .

Cited by:
Appeal From – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .

Lists of cited by and citing cases may be incomplete.

International, Children

Updated: 23 December 2021; Ref: scu.589925

Re C (Children): SC 14 Feb 2018

‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and
(2) whether and when a wrongful retention of a child may occur if the travelling parent originally left the home State temporarily with the consent of the left-behind parent or under court permission, and the agreed or stipulated time for return has not yet arrived.’ M came from Australia with the two children. F agreed to them staying for a year, but she then sought British Nationality for them, without telling F.
Held: (Lord Kerr dissenting in part, Lord Wilson dissenting) Where, the wrongful action occurred only after the child had acquired the new habitual residence, a summary order for return should not be made. Rather the normal procedures for custody disputes should be used. If there is a pre-emptive denial it would be inconsistent with the aim of the Abduction Convention to provide a swift, prompt and summary remedy designed to restore the status quo ante to insist that the left-behind parent wait until the aeroplane lands on the due date, without the child disembarking, before any complaint can be made about such infringement.

Lady Hale, President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes
[2018] UKSC 8, [2019] AC 1, [2018] 1 FLR 861, [2018] 2 WLR 683, [2018] 3 All ER 1, [2018] WLR(D) 90, [2018] 2 FCR 733, UKSC 2017/0135
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2017 Oct 09 am Video, SC 2017 Oct 09 pm Video, SC 2017 Oct 10 am Video
Hague Convention on the Civil Aspects of International Child Abduction, Child Abduction and Custody Act 1985
England and Wales
Citing:
At FD – Re P and O (Child Abduction: Anticipatory Breach) FD 10-Nov-2016
M and children had come back to England from Australia, and had F’s consent to stay for another year. She then applied for British Citizenship for the children without F’s knowledge. F now sought their return.
Held: The children had become . .
Cited – In re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
Cited – In Re S (Minors) (Convention On the Civil Aspects of International Child Abduction) FD 21-Jul-1993
(Child Abduction: Wrongful Retention) A failure by a parent to return a child to his country of residence can constitute a wrongful retention under the Convention. Where both parents have equal status in relation to the child, one parent can not . .
Appeal From – In Re C (Children) CA 12-Jul-2017
F appealed against refusal of an order requiring M to return their two children to Australia. . .
Cited – In re H (Minors) CA 20-Aug-1990
The Hague Convention did not apply to wrongful acts of removal which had taken place before the 1985 Act came into force.
Lord Donaldson MR said: ‘plainly the Act and Convention can only apply if the child is found in a different State from . .
Cited – In Re H (Minors) (Abduction: Custody Rights) HL 1991
The House addressed the question whether wrongful removal and wrongful retention were mutually exclusive concepts. The issue arose in the context of the commencement date for the 1985 Act as between the two States involved.
Held: For the . .
Cited – In re G (A Minor) (Enforcement of Access Abroad) CA 1993
The Convention did not provide for mutual enforcement of access rights, and when determining matters of access relating to access to children to whom the Convention applied English courts are entitled to apply the Children Act 1989, and to consider . .
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Cited – OL v PQ ECJ 8-Jun-2017
ECJ (Judgment) Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – . .
Cited – C v M ECJ 9-Oct-2014
ECJ (Judgment) Urgent preliminary ruling procedure – Area of freedom, security and justice – Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Hague Convention of 25 October 1980 on the civil . .
Cited – Falk v Sinclair 2010
The question was whether having removed child to another country by agreement, and later deciding to stay, there is then and there a wrongful retention, or whether his retention of the child cannot in law be wrongful until the date agreed for return . .
Cited – In re S (Minors) (Child Abduction: Wrongful Retention) FD 1993
The parents of S were Israeli citizens living in Israel. They had equal parental rights and responsibilities under Israeli law. They brought their two children to England intending to reside here for one year and then return to Israel. The father . .
Cited – Snetzko v Snetzko 27-Jun-1996
(Ontario – Superior Court of Justice) APPEAL – Grounds – Factual findings by trial judge – Deference to trial judge’s factual determinations and findings – Where trial judge has had chance to observe witnesses while testifying and to draw . .
Cited – Re B (A Minor : Habitual Residence) FD 24-Aug-2016
Hayden J said: ‘In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move.’ . .
Cited – O v O FD 21-Aug-2013
(Child Abduction: Return to Third Country) . .

Cited by:
Cited – NY (A Child : 1980 Hague Abduction Convention : Inherent Jurisdiction) CA 18-Jun-2019
M appealed from an order ordering the summary return of a girl to Israel. . .
Cited – O v O FD 21-Aug-2013
(Child Abduction: Return to Third Country) . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 23 December 2021; Ref: scu.604790

In re S (Minors) (Child Abduction: Wrongful Retention): FD 1993

The parents of S were Israeli citizens living in Israel. They had equal parental rights and responsibilities under Israeli law. They brought their two children to England intending to reside here for one year and then return to Israel. The father returned to Israel early and commenced proceedings for divorce. The mother remained in England with the children and had obtained ex parte interim prohibited steps and residence orders under the 1989 Act. The father then issued return proceedings under the Convention.
Held: The father’s application succeeded. Among other things, the parents had agreed to live in England for a year. The breakdown of the relationship did not entitle the father unilaterally to resile from that agreement and the children should remain in England for that period. However, since the mother had announced an intention not to return at all, she could no longer rely on the father’s agreement to the limited period of removal as protecting her against an application under the Convention.

Wall J
Gazette 06-Oct-1993, [1994] Fam 70
Children Act 1989, Convention on the Civil Aspects of International Child Abduction 1980
England and Wales
Cited by:
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Approved – in Re M (Abduction: Habitual Residence) CA 1996
The court accepted a proposition that one parent with parental responsibility could not achieve a change in the child’s habitual residence without the consent of the other parent with parental responsibility. . .
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .

Lists of cited by and citing cases may be incomplete.

Children

Updated: 23 December 2021; Ref: scu.588977

NY (A Child : 1980 Hague Abduction Convention : Inherent Jurisdiction): CA 18 Jun 2019

M appealed from an order ordering the summary return of a girl to Israel.

Flaux, Moylan, Haddon-Cave LJJ
[2019] EWCA Civ 1065, [2019] 3 FCR 49
Bailii
England and Wales
Citing:
At FD – TY v HY (Return Order) FD 17-Apr-2019
F sought a summary order for the return of his 2 year old daughter to Israel. M claimed habitual residence within the UK.
Held: The court had ‘considerable concerns regarding the credibility of the mother’s evidence’. She made several . .
Cited – Falk v Sinclair 2010
The question was whether having removed child to another country by agreement, and later deciding to stay, there is then and there a wrongful retention, or whether his retention of the child cannot in law be wrongful until the date agreed for return . .
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .

Cited by:
Appeal from – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. . .

Lists of cited by and citing cases may be incomplete.

Children

Updated: 23 December 2021; Ref: scu.638825

OL v PQ: ECJ 8 Jun 2017

ECJ (Judgment) Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – International child abduction – The Hague Convention of 25 October 1980 – Regulation (EC) No 2201 / 2003 – Article 11 – Application for return – Concept of ‘habitual residence’ of an infant – Child born, in accordance with the will of his parents, in a Member State other than that of their habitual residence. The first months of life in the Member State of birth – Decision of the mother not to return to the Member State where the couple were habitually resident
A child born in Greece was habitually resident there, despite the originally Italian home of her parents, and that in consequence an order under the Abduction Convention for return from Greece to Italy could not be made by the Greek court: ‘It is clear from those provisions that the concept of ‘habitual residence’ constitutes a key element in assessing whether an application for return is well founded. Such an application can succeed only if a child was, immediately before the alleged removal or retention, habitually resident in the member state to which return is sought.’

C-111/17, [2017] EUECJ C-111/17
Bailii
European
Cited by:
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .

Lists of cited by and citing cases may be incomplete.

Children

Updated: 23 December 2021; Ref: scu.588292

VP v Russia: ECHR 23 Oct 2014

ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Failure to enforce residence order concerning child abducted by his mother: violation
Facts – In 2008 the applicant’s former wife took their child from Moldova, where they lived, to Russia without the applicant’s consent. Shortly before the abduction, the applicant had filed a request before a Moldovan court for a residence order in respect of the child, which request was eventually granted in 2009. However, the child’s mother refused to comply. The applicant tried to enforce the judgment in Russia. In 2011 the Russian authorities issued a warrant of execution in respect of the Moldovan court judgment, but the bailiffs refused to enforce it. In 2012 the applicant’s former wife eventually returned to Moldova with the child, who was again living with the applicant at the time of the European Court’s judgment.
Law – Article 8: The 2009 Moldovan court’s judgment and the subsequent warrant of execution issued by the Russian authorities had shown due regard to the best interests of the child and were thus in line with the Convention. However, it had taken the Russian authorities more than a year to issue the warrant of execution. In the Court’s opinion, that delay was attributable to the authorities, who had incorrectly interpreted the applicable legislation and had considered the judgment as ‘self-executing’ with no further action needed to enforce it. In addition, as the bailiffs’ service had also wrongly interpreted the applicable legislation and refused to enforce the warrant of execution, the applicant had had to initiate another set of court proceedings in Russia, which had only ended in 2012. In this respect, the bailiffs’ refusal had not only been unlawful, but had also prejudiced the applicant’s and the child’s interests as it had prolonged their separation. As for the existence of other mechanisms in Russian law which would allegedly have facilitated the enforcement of the Moldovan court’s judgment, the Court observed that no measures had ever been taken. Thus, the applicant’s former wife had never been subject to an administrative sanction for the unlawful retention of the child and the Russian authorities had refused to consider her behaviour as criminally punishable under Russian law. Although none of these shortcomings was serious in itself, the Court nevertheless stressed that proceedings concerning child-residence matters required urgent handling. In the light of these considerations, the measures taken by the Russian authorities in order to enforce the Moldovan judgment could not be considered ‘adequate and effective’.
Conclusion: violation (unanimously).
Article 41: EUR 7,000 in respect of non-pecuniary damage.

61362/12 – Legal Summary, [2014] ECHR 1281
Bailii
European Convention on Human Rights

Human Rights, Children

Updated: 23 December 2021; Ref: scu.538933

MD v Ireland (Dec): ECHR 16 Sep 2014

ECHR Article 14
Discrimination
Difference in criminal liability between underage boys and underage girls engaging in sexual intercourse: inadmissible
Facts – At the age of 15, the applicant engaged in sexual acts with a 14 year-old girl. He was subsequently convicted under Section 3(1) of the Criminal Law (Sexual Offences) Act 2006, which made it an offence to engage in a sexual act with a child under the age of 17, there being no defence of consent. In his application to the European Court, the applicant effectively complained of discriminatory treatment in that, by virtue of Section 5 of the Act, girls under the age of 17, unlike boys, could not be guilty of an offence under the Act by reason only of engaging in an act of sexual intercourse. The rationale for this difference in treatment was explained by the domestic courts as being to protect young girls from pregnancy, as they were only relieved from criminal liability in respect of intercourse, not in respect of other sexual activity with underage children.
Law – Article 14 in conjunction with Article 8: The State must be allowed a margin of appreciation in determining whether different treatment is justified between two similar situations. Unlike the usual position in cases concerning sex discrimination, in the specific circumstances of the applicant’s case, which concerned a weighty matter of public interest – protecting the integrity and well-being of children – that margin was not to be narrowly confined.
As to the question of objective and reasonable justification for the difference in treatment, the Irish legislature had objective reason to criminalise all sexual activity involving children (to protect them from physical and psychological harm) and to make special provision for girls only in respect of sexual intercourse (because of the added hazard for girls of pregnancy). Accordingly, it could not be said that Section 5, which provided a limited exemption from criminal liability for girls in respect of one form of sexual activity – sexual intercourse – was arbitrary or motivated merely by traditions, general assumptions or prevailing social attitudes in the respondent State. The Court did not consider that the exemption from criminal liability applied to young girls in respect only of sexual intercourse was so broad as to raise a doubt about its proportionality to its intended and legitimate aim. Instead, the legislation achieved an accommodation between the need to deter and punish sexual acts involving children and the reality that it was not uncommon for young people to be engaged in underage sexual activity. Just as the penalties were increased where the perpetrator was a person in authority over the child, so the consequences were lessened where the parties were close in age. Moreover, where the persons concerned were underage, the Director of Public Prosecutions (DPP) examined each case in the light of its individual facts, paying particular regard to any element of exploitation but also taking account of any genuine emotional relationship between the parties, in order to determine whether the public interest required prosecution.
The difference in treatment was, therefore not lacking in justification, and fell within the State’s margin of appreciation.
Conclusion: inadmissible (manifestly ill-founded).
Article 6 and Article 14: The applicant argued that it was unfair that he alone should face a criminal charge and that the 2006 Act specifically excluded the defence of consent even though the offence of defilement through sexual intercourse was essentially akin to a rape charge. He also submitted that the fact that the DPP was vested with discretion under the Act did not cure the unfairness or act as any sort of safeguard as the DPP was not required to give reasons for taking proceedings or to have regard to the fact that the accused was himself a child at the material time.
The Court rejected these arguments. The discrimination complaint was essentially a reiteration of that already examined under Article 14 in conjunction with Article 8. Referring to its decision in the similar case of G. v. the United Kingdom, the Court found no reason to impugn the choice of the Irish Parliament to exclude the defence of consent in respect of offences perpetrated upon children. Indeed, this was entirely consistent with the Act’s important purpose. Nor did the applicant’s criticism of the DPP’s discretion add anything to his complaint of unfairness. In some jurisdictions prosecutorial discretion was a feature of the criminal law. Moreover, the applicant appeared to have benefitted in several respects from the DPP’s discretion as he had been charged with the lesser (Section 3) offence which meant a lighter range of sentences and his not being registered as a sex offender, and he had also avoided prosecution on a separate count of buggery.
Conclusion: inadmissible (manifestly ill-founded).

50936/12 – Legal Summary, [2014] ECHR 1285
Bailii
European Convention on Human Rights

Human Rights, Crime, Children

Updated: 23 December 2021; Ref: scu.538920

A (Area of Freedom, Security and Justice): ECJ 2 Apr 2009

ECJ Judicial co-operation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility – Regulation (EC) No 2201/2003 Substantive scope – Definition of ‘civil matters’ – Decision relating to the taking into care and placement of children outside the family home – Child’s habitual residence – Protective measures – Jurisdiction

[2009] EUECJ C-523/07, [2010] 1 Fam 42, [2009] 2 FLR 1, [2009] Fam Law 568, ECLI:EU:C:2009:225, [2009] ILPr 39, [2010] 2 WLR 527
Bailii
Regulation (EC) No 2201/2003
European
Citing:
Opinion – A (Area of Freedom, Security And Justice) ECJ 29-Jan-2009
ECJ Area of Freedom, Security And Justice – Opinion – Judicial cooperation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental . .

Cited by:
Cited – Re KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
Cited – AR v RN (Scotland) SC 22-May-2015
The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited – Re B (A Child) SC 3-Feb-2016
Habitual Residence of Child not lost
(Orse In re B (A Child) (Reunite International Child Abduction Centre intervening)) The Court considered the notion of habitual residence. The British girl with same sex parents had been taken to Pakistan, and her mother here sought her return. The . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 23 December 2021; Ref: scu.538776

M v F: CCF 29 Oct 2013

Private Law proceedings in respect of three children. The mother makes allegations of physical abuse on the children in respect of the children and domestic abuse of herself which the father denies.

Parker J
[2013] EWCC B11 (Fam), [2013] EW Misc 29 (CC)
Bailii
England and Wales

Children

Updated: 22 December 2021; Ref: scu.537824

OPO v MLA and Another: CA 9 Oct 2014

The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a child. The claimant’s mother said that he would suffer harm by the publication.
Held: The court dismiss the father’s appeal on the questions whether OPO has a cause of action for MPI or negligence, but held that OPO had sufficiently favourable prospects on the facts of this case of establishing at trial his claim under Wilkinson v Downton that the publication by the respondents of the Work in its present form would constitute intentional conduct causing him psychiatric harm to justify an injunction restraining publication of parts of the Work pending trial.

Arden, Jackson, McFarlane LJJ
[2015] EMLR 4, [2014] EWCA Civ 1277, [2014] WLR(D) 422
Bailii, WLRD
Private International Law Act (Miscellaneous Provisions) Act 1995
England and Wales
Citing:
Cited – Wilkinson v Downton 8-May-1997
Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and . .
Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
Cited – OPO v MLA and Another QBD 18-Jul-2014
A boy now sought an interim injunction to restrain his father, the defendant classical musician, from publishing his autobiography which mentioned him. The book would say that the father had suffered sexual abuse as a child at school.
Held: . .
Cited – ETK v News Group Newspapers Ltd CA 19-Apr-2011
The claimant appealed against refusal of an injunction to restrain the defendant newspaper from publishing his name in connection with a forthcoming article. The claimant had had an affair with a co-worker. Both were married. The relationship ended, . .
Appeal From – OPO v MLA and Another QBD 18-Jul-2014
A boy now sought an interim injunction to restrain his father, the defendant classical musician, from publishing his autobiography which mentioned him. The book would say that the father had suffered sexual abuse as a child at school.
Held: . .
Cited – Janvier v Sweeney 1919
During the First World War Mlle Janvier lived as a paid companion in a house in Mayfair and corresponded with her German lover who was interned as an enemy alien on the Isle of Man. Sweeney was a private detective who wanted secretly to obtain some . .
Cited – McLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Khorasandjian v Bush CA 16-Feb-1993
The plaintiff was an eighteen year old girl who had had a friendship with the defendant, aged 28. The friendship broke down and the plaintiff said she would have no more to do with him, but the defendant did not accept this. There were many . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – CTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
ctb_newsQBD11
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .
Cited – Victorian Railway Commissioners v Coultas PC 21-Jan-1888
(Victoria) The appellant’s gatekeeper had negligently invited the plaintiffs to cross a railway line as a train approached. There was no collision, but the plaintiff sought damages for physical and mental injuries from shock.
Held: The . .
Cited – Al-Misnad v Azzaman 2003
Evidence of international law . .
Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .

Cited by:
Cited – Bains and Others v Moore and Others QBD 15-Feb-2017
The claimant anti-asbestos campaigners complained that the defendant investigators had infringed their various rights of privacy. They now sought discovery to support the claim.
Held: the contents of the witness statements do show that it is . .

Lists of cited by and citing cases may be incomplete.

Media, Children

Updated: 22 December 2021; Ref: scu.537469