Re S. (A Child: Abduction) [2002] EWCA Civ 1941, [2003] 1 FLR 1008

INCADAT legal file Hague parental abduction

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The child, a boy, was 7 at the date of the alleged wrongful retention. He was born in Germany and had German nationality. The mother was German and the father was Welsh. They had married in September 1996 and were divorced in August 1998. On 15 February 1999 the mother was awarded residence and the father contact.
On 8 February 2002 the mother unilaterally took the child from Wales to Germany. She wrote to the father stating that the child would remain in Germany and suggesting access arrangements for the father and his parents. A formal letter was also sent by the mother’s solicitors.
The parents spoke on 20 March 2002 and agreed that the child could visit the father during the Easter holidays. The same day the father confirmed these arrangements in a fax to the mother. He also requested that he have access to the child during all school holidays.
On 21 March the mother’s solicitors wrote to the father, noting that he was not objecting to the child living permanently in Germany, subject to future agreement as to contact arrangements. In this it was proposed that access during school holidays be divided equally between the parents.
The child’s Easter visit to Wales passed off without incident. The issue of subsequent access however remained unresolved. The mother’s solicitors wrote again on 16 April pressing the father to agree to their earlier proposal.
The father then obtained legal representation and his solicitors wrote to the mother on 15 May pressing for agreement on the father’s proposals and threatening proceedings otherwise. The father’s solicitors wrote again on 14 June stating that proceedings would be issued unless there was a substantive response. However on 17 June they wrote to confirm an oral agreement reached between the parents to the effect that the father would accept the mother’s counter proposal regarding access arrangements.
The child then came to Wales for a visit on 26 June. However, 3 July the father issued proceedings seeking to retain the child in Wales. A two day hearing took place at the Caernarfon County Court on 10/11 July which resulted in the father being awarded interim custody. On 17 July the mother applied for leave to remove the child from the jurisdiction.
On 23 July a court in Frieburg (Germany) made an ex parte ruling that the child was being wrongfully retained. The same day the mother issued return proceedings under the Hague Convention and the proceedings before the Caernarfon County Court were then stayed in accordance with Article 16 of the Convention. On 24 September the High Court dismissed the mother’s return application. The mother appealed.