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Child Abduction: the Article 13(b) defence and protective measures

Lauren Bovington, paralegal, International Family Law Group LLP, analyses a recent important Court of Appeal judgment concerning the Article 13(b) defence in 1980 Hague Convention proceedings.

Lauren Bovington, iFLG LLP
















Lauren Bovington, paralegal, International Family Law Group LLP

On Tuesday 9th August 2016 the Court of Appeal (Macur LJ, Beatson LJ and Sales LJ) handed down judgment in the case of Re M (Children) [2016] EWCA Civ 942. The first instance judgment of Russell J was reported as DM v KM [2016] EWHC 1282 (Fam).

The father had sought the return of his two children to the USA from England. The mother had arrived in the UK for a holiday in January 2016 and wrongfully retained the children from February 2016. Proceedings were issued by the father in March 2016 for the return of the children to New Jersey.

In defence of the father's application, the mother sought to rely on Article 13(b) of the 1980 Hague Convention. Article 13(b) states that a member state "is not bound to order the return of the child if the person, institution or other body which opposes it's return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

The leading authority on Article 13(b) defences is Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27:

"Where allegations of domestic abuse are made, the court should first ask whether, if true, there would be the grave risk as defined by Article 13b. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country … Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues."

The mother sought to prove that there was a grave risk that an order for their return would expose the children to emotional harm and otherwise place them in an intolerable situation by virtue of the risk of exposure to serious domestic violence. 

At the final hearing in May 2016 before Russell J, the mother alleged that she had been subjected to a number of serious and violent incidents of domestic abuse during the marriage. The mother accepted that she had not reported any of her allegations to the police. She did not produce, nor seek to adduce, any corroborative evidence, for example, a medical report, photographs or other witness statements. The father denied the allegations.

Despite denying the allegations, the father sought to ameliorate any perceived concerns by offering a wealth of undertakings to the court, supported by written evidence from a US attorney in respect of their enforceability. He agreed:

a. Not to prosecute the mother for the offence of child abduction;

b. Not to attend the airport of arrival;

c. Not to remove the children from the mother's care;

d. To vacate his 3 bedroom property and allow for the mother and children to reside there;

e. To pay the rent and outgoings on the property;

f. To provide reasonable maintenance;

g. To pay for the children's return flights in the event that the existing return flights could not be revived;

h. To submit to a non-molestation order on a without prejudice basis; and

i. To commence proceedings before a competent court of the USA in respect of the children.

Notwithstanding the father's offered undertakings, Russell J dismissed the father's application. She concluded that a return would present a grave risk of emotional harm to the children. She found that the undertakings offered by the father amounted to "no more than vague and ephemeral assurances and do not amount to protective measures at all sufficient to meet the needs and circumstances of the children in this case."

The father appealed and was successful. The Court of Appeal determined that the judge had not conducted a proper evaluation of the protective measures.

The Court of Appeal reiterated the Re E test and the three step approach, namely (i) identify the risks, (ii) consider protective measures and (iii) in the absence of protective measures, the court should do the best it can to resolve disputed issues. The Court of Appeal concluded that the judge's approach to the issue of protective measures was 'wrong', and inconsistent with Re E in that the judge 'merged the first and third step of the exercise upon which she should have embarked'.

The conclusion of the judge at first instance was that the protective measures amounted to little more than 'vague and ephemeral' assurances. The measures proposed were developed with the assistance of a New Jersey attorney and were intended to be fully enforceable in that jurisdiction.  It was argued on behalf of the father that the conclusions made by the judge in respect of the protective measures were incompatible with the written evidence before the court and based on a lack of evaluation. 

It was further argued that the undertakings offered were not only adequate, but went above and beyond what would ever be required by an English court as a means of protecting a victim of alleged domestic abuse. The judge at first instance not only found the enforceability of the undertakings doubtful despite evidence to the contrary, she also doubted the effectiveness of the New Jersey police force as a first port of call if the mother found herself in fear of violence.  The Court of Appeal, putting things very simply, found no basis to 'legitimately doubt the efficacy of the USA courts or police force in enforcing protective measures'. The Court of Appeal feared that Russel J's approach was 'confused'.

Russell J devoted a great deal of her judgment to the CAFCASS report. The onus upon the court was to look at and evaluate the effect of domestic abuse on the children, as opposed to the returning parent.  The court's error was to accept the children's views as evidence of domestic violence. This was neither the purpose nor the conclusion of the report and Russell J's comments, were 'not sufficiently careful to avoid the perception that she had reached adverse conclusions against the father and was sympathetic to the mother's plight'.

The CAFCASS officer concluded that the children were not at grave risk of harm at the hands of their father and the final recommendation was that there should be contact, albeit supervised.  The relevance of the report was questioned by the Court of Appeal who went further to say that the court 'was ill advised to interpret a factual scenario' from the report.

At its most simplistic evaluation, this case reinforces the need for proper and balanced evaluation of the issues and allegations in Article 13(b) cases. The summary nature of the assessment that should be conducted does not exclude the need for legal scrutiny of allegations. The strength in the father's case lay in the weight and effectiveness of the protective measures.

This decision reiterates that it is not within the remit of English courts to determine the ability of other 1980 Hague Convention signatories to protect potential victims of domestic abuse. Nor is it the English court's responsibility to determine other signatories' ability to adjudicate family proceedings.  It reinforces the message that whilst Hague proceedings are not a fact finding exercise the line between the two types of proceedings is dangerously thin, and occasionally, blurred.

The Court of Appeal has, in effect, set the bar for future cases as to the strength of proposed protective measures. One criticism of Russell J was her failure to consider a conditional order for return upon the father's performance of his offered undertaking, notably his offer to obtain injunctive orders and secure accommodation etc. This case relays the message that protective measures must be explored to the very fullest extent and as early as possible in proceedings.

The Court of Appeal allowed the father's appeal and ordered the return of the children to the state of New Jersey.

The International Family Law Group LLP acted for the father in Re M.

20/10/16