ES v LS [2021] EWHC 2758 (Fam)
Published: 09/11/2021 11:54
The Latvian father made a Hague Convention 1980 application for the summary return of the two children, aged 14 and 12. The mother alleged that the father had orally agreed to the children remaining in England after she brought them there. The mother's defences were settlement under Article 12; children's objections under Article 13; consent and acquiescence under Article 13(a); and grave risk of harm and intolerability under Article 13(b). She succeeded on the first two and thus it was not necessary for the third and fourth to be considered. In Mostyn J's judgment, the physical and mental constituents of the concept of settlement had been very amply proved in this case, and the children's objections to a return were rational, reasonable and logical. He exercised the discretion granted to him under articles 12 and 13 of the Convention against a return of the children to Latvia. He commented that "many of these outward return cases under the Hague 1980 Convention have become disproportionately complex, lengthy and expensive". He urged the court to strictly apply paragraph 3.8 of the Practice Guidance: Case Management and Mediation of International Child Abduction Proceedings (issued by Sir James Munby P on 13 March 2018), and allow oral evidence only where it was "demanded" to resolve the case justly, not "merely reasonable or desirable". As to an ex parte location order made by the father, it was Mostyn J's view that "the time has surely come to insist that the standards in the Practice Guidance concerning ex parte applications are scrupulously observed", which they had not been in this case.
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