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A (Children) (Abduction: Article 13(b)) [2021] EWCA Civ 939

2nd July 2021

Judgment: The mother appealed from an order, following the father's application under the 1980 Hague Convention, for the parties' children, aged 4 and 2, to be returned to the USA. The judge had decided that the mother had not established either of the grounds relied on by her in opposition to the application: acquiescence and Article 13(b). The situation was complicated by the mother having said that she would not return to the USA with the children. The mother appealed on three grounds: the judge's approach as to Article 13(b); the judge's approach to the issue of acquiescence; and whether her other, 14-year-old child's voice was adequately reflected in the proceedings. In Moylan LJ's view, the latter added nothing of substance to the appeal, and the judge had been entitled to conclude that the father's conduct did not evidence an intention to acquiesce. However, the judge had not been entitled to reject the mother's allegations regarding the father, and had not analysed whether the allegations, if true, would potentially create a grave risk within the scope of Article 13(b) nor how any such risk might be addressed. Moylan LJ's view was that returning the children to the USA in the absence of their mother would create a grave risk of their being exposed to physical or psychological harm or of them otherwise being placed in an intolerable situation. Baker and Arnold LJJ agreed. The appeal was allowed and the application for a return order was dismissed.