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A blast from the past: A Luxembourg Convention application

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The case of AA v TT [2014] EWHC 3488 (Fam) concerned an application under the, now very rarely used, Luxembourg Convention. The application by the father who resides in Turkey was for recognition and enforcement of an order granting him sole custody of his three children, which he had obtained in Turkey in November 2013. The children had been living in England with their mother since September 2012. Jenny Moore and Edward Bennett of Counsel represented the respondent mother pro-bono, during a three day hearing before Mr Justice Holman.

The case has a complex and lengthy history. In September 2012 the mother took the children to England; she has told the court she was fleeing very serious domestic violence, that both she and the children were suffering at the hands of the father.

In December 2012 the father made an application to the court in England for the summary return of the children under the Hague Convention 1980

The Mother told the court hearing the father's application that she would return to Turkey, but that she was unable to unless protective measures were put in place; she said that without those measures it would not be safe for her and the children to return. At the final hearing of the father's application for a summary return in April 2013, incidentally also heard by Mr Justice Holman, the father withdrew his application for the return of the children. 

The father had commenced custody proceedings in Turkey in October 2012, and in addition had commenced criminal proceedings against the mother in Turkey. The father continued to pursue his application for custody in the Turkish court and the mother says she withdrew from those proceedings on 3 May 2013.

In November 2013 the father obtained a final order from the Turkish court granting him custody of the children (the Turkish order reportedly became final in January 2014). The father, in this application, asked the High Court in England, to recognise and enforce that order in accordance with the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children 1980 (the Luxembourg convention), which England and Turkey are both signatories to.

Following a three day hearing, with oral evidence from the mother and from the father, Mr Justice Holman found that the defences in Article 10(1)(a) and 10(1)(b) of the convention were met, and thereafter he exercised his discretion not to recognise and enforce the order

It became apparent that the factual basis upon which the Turkish court had made their decision, crucially that the mother was living in Turkey and had abandoned the children in England with her parents, was found to be entirely false; Mr Justice Holman stated at paragraph 80 of the Judgement "The effects of the decision, if implemented, would be to remove the children from their mother, who is caring for them well, and from the environment in which they have been living for over two years and in which they are so settled, on an utterly mistaken foundation or premise as to the true facts. That, in my view, is manifestly incompatible with the fundamental principles of our law."

In addition the court found that there had been a change in circumstances after the removal that were such that the effects of the original decision are manifestly no longer in accordance with the welfare of the children. Mr Justice Holman relied on the report and evidence of the CAFCASS high court team, and stated at paragraph 82 "there is the major change that, earlier in 2013, the children were expressing a desire to live in Turkey. Now, they very strongly express a desire not to do so. Those actual and hypothetical assumed changes are such that it is now manifestly no longer in accordance with the welfare of these children that they should now move abruptly or rapidly, as the Turkish decision requires, from their settled environment with their mother here to living in Turkey with their father, whom they fear and whom they currently do not even wish to see."

 The judgment can be found at: http://www.bailii.org/ew/cases/EWHC/Fam/2014/3488.html

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