High Court rules in favour of Respondent wife seeking to remain in England after allegedly wrongfully removing the children from the US.

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Mrs Savita Sharma, Family Solicitor and Director at Legal 500 recommended law firm Duncan Lewis’ represented the Respondent Mother in proceedings pursuant to Hague Convention and Child Abduction and Custody Act 1985.

Savita Sharma Duncan Lewis Family Director & Solicitor

Savita Sharma Duncan Lewis Family Director & Solicitor

*Re: FQ and MQ and EQ and DQ (Hague Convention and the Child Abduction and Custody Act 1985) [2013] EWHC 4149 (Fam)

(Family Division), Mrs Justice Hogg, 20th December 2013- Child Abduction – Settlement Defence – Discretion exercised not to return:

Full Judgement can be found here.

According to judgement handed down with the case The Respondent Mother resisted the application for summary return of her 2 children and asserted that the children had been here for more than a year and had settled before proceedings were commenced.* She also asserted that the children objected to returning and should they be returned they would be at great risk of physical and emotional harm or otherwise placed in intolerable position.* The children were made parties to the proceedings and represented by their Guardian. The Respondent Mother succeeded in proving her that the children were now settled and as a consequence the Father’s application for summary return of the two children failed and was dismissed.*

The Applicant Father was seeking summary return of the two children aged 8 and 7 to be returned to the United States of America. The parties’ marriage was an arranged one. The Mother is a British citizen and all her close relatives live in London and all the Home Counties. The Father is an American citizen whose parents live in the same city on the East Coast of America while other close relatives live in or about London.*

Stated in the judgement, according to the Mother, the parties’ marriage was fairly happy but from 2008 the Respondent Mother’s position was that it became unhappy with alleged bouts of violence and aggression and abuse by the Father towards her on an increasing basis which at times spilled over to the children.* The Mother’s position was that the Father’s alleged behaviour scared the Mother, upset the children and she felt “lonely and afraid and ashamed to tell anyone”.* The Mother’s position was that the violence escalated during 2012 and culminated with the Father allegedly threatening to kill her, the children and him if she tried to leave. The Mother’s position was that this was the “last straw” and that she decided that the time had come to leave the Father and take herself and her children to safety to her family in England.*

As stated in the judgement, allegedly the Applicant Father denied the allegations and was desperate to reunite his family in America.* The Respondent Mother accepts that she left the jurisdiction in August 2012 without the consent of the Father, therefore, her removal had allegedly been a wrongful removal. The Father’s application for return of the children was made in September 2013, a year after the alleged wrongful removal. The Father’s position was that he had been duped in allowing the Mother to remain in England on the promise of reconciliation, which was indeed facilitated by her family.* Senior members of her family, in particular her paternal uncle, were involved in a possible reconciliation.

According to case judgement, the Applicant Father wrote several emails to the Mother requesting forgiveness, further chances and confirmed during telephone conversations with the Respondent Mother’s uncle that it was his fault and apologised. The attempts of reconciliation spanned a year where the Applicant Father visited the children in the UK for contact and discussions about reconciliation.*

The Court accepted that there were family discussions concerning a possible reconciliation and that there was a family culture to avoid divorce if at all possible. The Court did not accept the assertion allegedly made by the Father that when arriving in August 2012 the Mother was determined to keep the children in the UK, divorce the Father and achieve her ends by deception.* The Court accepted that she did not deliberately deceive the Father over a long period as the Father suggested.* The Court further accepted that there was no evidence to suggest that there was an agreement between the parents that the children could remain in England long term.* The Court was satisfied that the Mother gave no assurance or agreement that she would return to America and that there was no documentary evidence to support Father’s contentions that he received promises that the children would return to America by September 2013 or at any time.* The Court took the view that the Father had misinterpreted what was being said and that in his mistaken belief.*

The Judge accepted that there had been a loose understanding that the children would remain in England whilst family discussions were ongoing.* The Court took the view that there was no intervening event to subsume the wrongful removal into a wrongful retention and that the Mother’s wrongful act of removal was in fact on 23rd August 2012 and not as the Father stated 28th August 2013 when he received the UK Divorce Petition.*

This meant that the Respondent’s Mother raised her Article 12 Defence of settlement. The Court considered all the evidence including the Report produced by Cafcass.* The Cafcass officer prepared the report on the children’s degree of maturity, whether they objected to return to America and whether the children were settled in this jurisdiction for the purposes of Article 12.*

The Guardian confirmed that the children felt psychologically “safe, secure and happy and relaxed in their environment”.* Physically they were settled in school and at their home and they did not wish to return to the USA and did not want to live with their Father. *They stated that they did not feel that the children had been deliberately influenced by the Respondent Mother and the children’s feelings were genuine.*

On the basis of the evidence, the Judge was satisfied that the defence of settlement had been been made out and she confirmed that she was satisfied under Article 12 that the children are now settled within the jurisdiction and were settled by 24th August 2013.* The Judge stated that was not appropriate or in the children’s interests for the return order to be made. As a consequence, the Judge was satisfied on the evidence presented on behalf of the Respondent Mother’s which included her applications, statements and corroborative evidence, that the children were settled here pursuant to Article 12 and it would not be in their best interests to return to America.*

The Respondent Mother instructed Mrs Savita Sharma of Duncan Lewis Family Solicitors to represent her in these proceedings and Duncan Lewis successfully dealt with this matter on her behalf.

Mrs Savita Sharma, Family Solicitor and Director at Legal 500 recommended law firm Duncan Lewis’ represented the Respondent Mother.

About Duncan Lewis

Duncan Lewis, established in 1998, is the largest civil legal aid practice in the UK and one of the country's fastest growing firms of solicitors, serving both corporate entities and private individuals from offices across London and throughout the UK. A recommended leading law firm by Law Society Lexcel, Legal 500; Duncan Lewis employs over 500 members of staff and was the first law firm to achieve the Investors in People Gold Quality Standard Mark in 2009. Representing over 25,000 clients per year, the company has an excellent reputation in the Administrative Court, High Court and Court of Appeal in the Immigration, Public law and Family/Child Care jurisdictions.

Established areas of law are: business immigration, child care, civil liberties, clinical negligence, community care, crime and fraud, dispute resolution, debt and insolvency, employment, family and divorce, housing, asylum and immigration, litigation, mental health, personal injury, prison law, professional negligence, public law and administrative law, regulatory matters and welfare benefits.

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