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Minor – Removal outside jurisdiction. S, aged 15, left her mother in Mexico for London with the practical and financial assistance of her father. The mother applied for a summary return of S to Mexico, but S objected on the basis that she was not receiving a reasonable education in Mexico. The Family Division, in allowing the application, held that there had been a wrongful removal or retention. While taking account of S’s views, the relevant considerations pointed clearly to S returning to Mexico.

Summary

The judgment is available at: [2014] EWHC 2938 (Fam)S, aged 15, was the third and youngest child of the mother, a Mexican national residing in her home country. The father was a British citizen born in Bangladesh and living in the United Kingdom. The parents separated when S was only a year old and the mother was given permission to remove the children permanently to Mexico. In July 2014, S left Mexico for London with the practical and financial assistance of the father. Within four days, she witnessed her uncle’s assault of his wife and called the police. In response, the father evicted her from the home, and indicated that he did not want her and that she could not return. The mother applied for a summary return of S to Mexico, pursuant to the provisions of the Child Abduction and Custody Act 1985 (incorporating the Hague Convention on the Civil Aspects of International Child Abduction 1980) and under art 11 of Council Regulation (EC) 2201/2003 (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility).

S objected to returning to Mexico on the basis that she was not receiving a reasonable education in Mexico and that she enjoyed prospects for a superior education in the UK. Consideration was given to art 13 of the Convention.

The application would be allowed.

The father had secretly facilitated the removal of S from Mexico and the care of her mother, and had retained S in the UK. He had done so without the mother’s consent and in breach of the mother’s rights of custody. Accordingly, there had been such a wrongful removal or retention that obliged the order of S’s return forthwith unless an exception contained in art 13 of the Convention applied. The only potential exception was that S objected to returning. There was no doubt that, at 15 years old, S was of an age at which it would be appropriate to take account of her views. However, S’s ability to engage constructively in and benefit from education in the UK would be materially compromised if she were not able to live in, and rely on, a settled and secure home. Although she had spoken in less than favourable terms about life in Mexico with her mother, that life appeared, on the evidence, to be more settled than that in the UK. Accordingly, while taking account of S’s views, the relevant considerations pointed clearly to S returning to Mexico (see [21]-[23], [34], [44], [45] of the judgment).

M (children) (abduction), Re [2008] 1 All ER 1157 followed; R (a child) (abduction: child’s objections to return), Re; De L v H [2009] All ER (D) 235 (Dec) applied; K (Abduction: Case Management), Re [2011] 1 FLR 1268 applied.

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