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C (A Child) (Child Abduction: Parent's Refusal to Return With Child) [2021] EWCA Civ 1216

10th August 2021

Judgment: Both parents were French and the child had always lived in France. In March 2020 the mother had brought the son to England on holiday. A return had initially been been prevented by the Covid lockdown, but they had subsequently stayed in England. The father had commenced Hague Convention proceedings, and his application for an order for the son's return to France had been granted. The mother appealed the judge's decision as to her Article 13(b) defence on five grounds, for example that there was insufficient evidence to decide that she would return with the child to France. In Sir Andrew McFarlane's view, there was no basis for asserting that the judge had fallen into error by imposing an objective assessment of what he considered a reasonable mother would do. The judge had been correctly engaged in determining whether this mother would not go to France if the court required her son to do so. Cohen J had determined this issue against her and, on that basis, correctly held that her Article 13(b) claim was not established. Moylan LJ and Arnold LJ agreed, and the appeal was dismissed. The judge's order would stand and steps now had to be made to repatriate the child to France.