Re B (Article 13b) [2021] 1 FLR 721

Date of Case: 11 August 2020
Case Reference: [2021] 1 FLR 721

Michael Hosford-Tanner of QEB acted in a Hague Convention case for respondent mother who had come to UK as a teenage refugee from Bosnia, with her mother, gone to secondary school in England and become a UK citizen. The mother was vulnerable, having been traumatised by her experiences as a child living on the front line in Sarajevo of the Bosnian conflict. However, she then married a Bosnian man, whom she had met when visiting her father, who had remained living in Bosnia. The child was born in England, where mother retained a home, but she had lived in Bosnia for almost a year when the unhappy events happened. That meant that the young child had become habitually resident in Bosnia, which was unfortunate.

During that year the mother and father had quarrelled and then separated. The mother and child mainly stayed with her sister, who had herself returned to Bosnia. The father and his family behaved aggressively towards the mother, who had to get police protection and an injunction in Bosnia, namely providing that father not visit her sister’s home. The mother came to England urgently, bringing the young child with her.

Bosnia is member country under the Hague Convention of the Civil Aspects of Child Abduction 1980, which is the Convention which generally covers unilateral removal of children by a parent from one Hague country to another, and generally applies to ensure a prompt return to the country of the child’s habitual residence. The mother did not have father’s permission to move the child from Bosnia, so the Convention treated it as a wrongful removal. The father applied in July 2019 for an order for return of the child to Bosnia.

It had been particularly unsettling for this mother to have encountered violence from her husband in the country where she had been traumatised by violence as a child. That trauma had caused her to suffer from a long term post traumatic stress disorder and anxiety. The trial judge nevertheless ordered the return of the child to Bosnia, saying mother could cope with a return, even though mother had said she could not cope with returning to Bosnia herself.

Unsurprisingly, this further unsettled the mother and we made an application soon after that to set aside the return order, and to get permission to obtain a report from an expert consultant psychologist on whether the mother could indeed cope with a return to Bosnia. Another judge gave us permission to obtain the expert report.

The father made matters worse in the meantime by breaching some undertakings he had given, which were meant to re-assure the mother in Bosnia – his breaches then had the opposite effect. The mother had always feared that he would not comply with his undertakings.

The trial judge then re-considered the matter at a new hearing, but decided not to change her previous return order, despite the expert evidence indicating that mother could not cope unless it was apparent to her that father’s undertakings were rock-solid. There were indications that the undertakings were not rock-solid, but the judge decided that she could trust the father in future to adhere to them, despite some breaches to date.

We appealed against that decision and were successful in the Court of Appeal in August 2020, which set aside the order that the child return to Bosnia. The Court of Appeal said that this mother’s otherwise good care of the child would be jeopardised by a return to Bosnia, as subjectively she could not cope with a return, and the child had principally lived with her.

The mother and the child have therefore, been able to stay in England. The whole process lasted for over a year, but had an eventually satisfactory outcome for the mother.

Bailii report: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2020/1057.html&query=(B4/2020/0576)

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