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IG (Child Abduction Habitual Residence Article 13b) [2021] EWCA Civ 1123

4th August 2021

Judgment: The mother, born in England, appealed against an order under the Hague Convention for the summary return of her son to South Korea. After the family travelled to South Korea in December 2019, the mother had been granted a three-month tourist visa. On her case, she had then been unable to return to England until the maternal grandmother came to assist her departure in March 2020, at which point they had left, with the child, and without informing the father. The principal issues now were the determination of the child's habitual residence and the judge's approach to Article 13(b) defences. The mother also raised issues concerning the differences between the judge's ex tempore judgment, a supplemental judgment, and the final approved judgment. Baker LJ decided that the judge had been entitled to conclude that the child had acquired habitual residence in South Korea shortly after his arrival, but the assessment of the Article 13(b) defence had been flawed. It was unclear whether or not the judge had concluded that there was in fact an Article 13(b) grave risk. It was unclear whether the judge had found that there was no risk of the father removing the child from his mother's care or alternatively that there was a risk but it was ameliorated by his undertaking not to do so, notwithstanding that it was unenforceable in the Korean court. The judge's analysis of the protective measures had also been flawed. It was not therefore necessary to go on to consider whether the process adopted by the judge was procedurally unfair or amounted to a procedural irregularity. Lewis LJ and King LJ agreed, and so the appeal was allowed. The question of whether the mother could establish a defence under Article 13(b) would be remitted for determination by another judge of the Family Division.