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Child Abduction - The Court of Appeal examines the Article 13(b) defence

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The Court of Appeal recently considered a father’s application for an appeal against a final order made by Ms Justice Russell on 19 May 2016.  The father’s initial application at first instance was for the return of his two children to the United States of America (USA).

Background

The case concerned two children aged 5 and 4, who resided in the USA. They travelled with their mother to England on 22 January 2016 for a holiday and were due to return to the USA on 19 February 2016. However, the children were not returned and remained in England. The father’s original application was under the 1980 Hague Convention for the summary return of the children to the USA. The children’s mother opposed the application, relying on the Article 13(b) defence of the Convention, setting out that there was a grave risk  that the children’s return to the USA would expose them to physical or psychological harm or otherwise place them in an intolerable situation. The mother’s case was that she had been the victim of domestic abuse, perpetrated by the father and that the children were often present and witnessed the abuse. Prior to the final hearing, the Judge at first instance had directed that CAFCASS should prepare a report regarding the children’s wishes and their degree of maturity.

The father accepted that the marriage had at times been unhappy and that the police had on occasion been called to the family home. The Judge at first instance was required to assess the risk based on the mother’s allegations and consider whether the protective measures suggested by the father were adequate. The father had confirmed that he would not seek to prosecute the mother in the USA, that he would provide accommodation for the mother and the children in the USA and that he would comply with the equivalent of a Non Molestation Order.

The Judge considered the father’s Undertakings and found that the safeguards offered by the father were vague and not sufficient to meet the children’s needs. She subsequently refused to order the children’s return to the USA.

Appeal

The father appealed the decision of the Judge on two grounds. The first was in respect of the Judge’s approach when considering and dismissing the safeguards offered by the father and the second was that the Judge failed to properly consider the mother’s case if she found the safeguards to be inadequate.

Lady Justice Macur, who gave the lead judgment in this case, set out that the Court should firstly consider whether there was a risk to the children, considering whether the relevant allegations of a parent are true. The Court should then consider the protective measures proposed by the opposing party and if they are found to be inadequate, the Court should attempt to make findings on the disputed issues. This is as per the approach set out in Re E (E (Children), Re [2011] UKSC 27 (10 June 2011)). 

It is also important to remember that the proceedings only concern the return of the children to the USA, the country of their habitual residence. The Court in this jurisdiction should not at this stage of proceedings resolve disputes regarding the risk and extent of harm, that would be an issue for the Jurisdiction that the children are returned to, if that is the outcome.

The Court found that in this instance, the Judge placed too much reliance on the CAFCASS report when assessing the adequacy of the father’s proposed protective measures. As an aside, there was mention made as to whether the report was necessary, presumably given the children’s young ages. It was found that the Judge did not hear evidence from the parties regarding the disputed facts and therefore this lead to a sympathetic approach to the mother’s position.

This was following the CAFCASS officer reporting that the children would require stable accommodation, no unsupervised contact with their father and financial support for the mother. The Judge was correct to interrogate the father’s proposals. However, she was incorrect to doubt the efficacy of the Courts in the USA or the police in enforcing the protective measures. It was held by the Court of Appeal that the Judge should have made an order for return pending the father obtaining proof that the mother and children would be sufficiently accommodated, as well as injunctive orders being obtained in advance.

The father’s appeal was allowed and it was directed that the parties should draw up a detailed Consent Order, setting out the specifics of the return.

The link to the Court of Appeal Judgment can be found here: http://www.familylawweek.co.uk/site.aspx?i=ed164639

At TV Edwards LLP we regularly act for both Applicant and Respondent’s in Hague Convention proceedings, we have specialist solicitors whose expertise in this area has been recognised by their obtaining accreditations and panel memberships. We understand that situations concerning child abduction can be stressful and upsetting and that those affected need quick and effective advice and action taking. If you need legal advice relating to child abduction proceedings then please contact our specialist International children law team on 0203 440 8000 or by email: A_FamilyReferrals@tvedwards.com

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