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Cross-jurisdictional disputes surrounding child custody can be complex but, in cutting through the complexities, the courts will always focus on the welfare of the children involved, as was evidenced in a High Court case centred on a child abduction.
A father wrongfully removed his 5-year-old child from Lithuania during an agreed contact session and took him back to the UK. Prior to this abduction, a series of contested proceedings related to the child's custody had already taken place in the Lithuanian courts.
The father had applied to have the child returned to the UK from Lithuania but his application was refused by the Lithuanian courts. This decision was made partly on the basis that the child would be at grave risk of harm if he was returned to the UK, given evidence that the father had a tendency to be violent towards others and to use violence in the presence of his son. A number of serious incidents of alleged violence by the father against the mother had also been taken into account.
In light of the father's unlawful removal of their son to the UK, the child's mother – a Lithuanian national – applied to the Court for a summary return order under the Child Abduction and Custody Act 1985.
In contesting the order, the father now claimed that there was a grave risk that the child's return to Lithuania would expose him to physical or psychological harm or otherwise place him in an intolerable situation under Article 13(b) of the Hague Convention. He also asserted that the Court was not bound to order the child's summary return and should not do so in its discretion.
The father claimed that the grave risk of harm existed on three fronts. Firstly, he claimed that his child's relationship with him would be harmed by Lithuanian court orders that restricted their contact with each other. He also argued that harm would be caused as a result of the education system in Lithuania not being as good as in the UK, and that his son's identity as a dual British citizen would be harmed in Lithuania because he would be 'deemed' only to have Lithuanian identity.
In setting out why it found that the risk claimed by the father did not come close to the necessary threshold of 'grave risk of harm' for the purposes of Article 13(b), the Court pointed out that the decisions made by the Lithuanian justice system in regard to contact restrictions had come as a result of the father's own violent and abusive behaviour. The other bases for his claim were also rejected, and the Court was therefore bound to order the child's return.