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S v C: Re E Revisited

Jennifer Perrins, barrister, of 1 King's Bench Walk, considers the Court of Appeal's judgment in S v C, the first appeal concerning an Article 13b 'defence' under the Hague Convention following the Supreme Court's decision in Re E (Children) (Abduction: Custody Appeal).

Jennifer Perrins
, barrister, 1 King's Bench Walk

The Supreme Court judgment in the case of Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2011] 2 FLR 758 was in some ways a deceptively simple decision.  It was made clear that there was to be no recalibration of the English approach to the Article 13b exception in applications pursuant to the Hague Convention; and any remaining misconceptions about the effect of the judgment in Neulinger and Shuruk v Switzerland (Application No 41615/07) [2011] 1 FLR 122 were exploded once and for all.  The Supreme Court also confirmed that the best interests of children, both generally and on an individual level, are at the heart of the Convention. 

In essence, the judgment in Re E reaffirms the principle that Article 13b should be restrictively applied; and on that basis, it should not have caused a change to existing practice and approach in Article 13b cases.  However, there are some parts of the judgment that are capable of being interpreted as requiring a modified approach.  Those aspects have recently been scrutinised by the Court of Appeal, in the case of S v C [2011] EWCA Civ 1385; in particular:

(i) The Supreme Court's statement that Article 13b should be construed without 'elaboration or gloss' and does not need to be 'restrictively interpreted', because the Article is by definition of restricted application [paragraph 31].  Although this could be taken simply to be a restatement of the existing law, it does potentially raise the question of whether there are earlier authorities that add an impermissible 'gloss' in an effort to explain or to illustrate the words of the Article, and whether the lower Courts have been approaching Article 13b cases incorrectly – i.e. too strictly – up to now. 

(ii) The emphasis placed by the Supreme Court upon protective measures – these were described as being 'at a premium' given the shift in the paradigm abductor, and the prevalence of allegations of domestic abuse [paragraph 7].  The Supreme Court went so far as to exhort the Hague Conference to look at how to make undertakings and other assurances enforceable in Requesting States [paragraph 37], and said that in disputed allegation cases, 'the clearer the need for protection, the more effective the measures will have to be' [paragraph 52].  

(iii) The consideration of how Article 13b risk should be assessed in the face of disputed allegations, and how protective measures should feature in this assessment – i.e. when, if ever, is there a need for determination of factual issues?  The tension between subjective and objective assessment of risk was touched upon, in the context of the mother's 'subjective perception' of events leading to mental illness [paragraphs 48-49].  At paragraph 36 of Re E, it was suggested that there should be a staged approach:

'Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation.  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'. 

This article will provide an analysis of the issues raised by S v C, and consider whether S v C is likely to be the last word on some or all of these points. 

The Court of Appeal judgment in S v C
This case concerned an Australian father, and a mother who was of British origin, but had dual Australian nationality.  The parties' only child, W, was born in November 2009.  The parents had separated in January 2011, at which time the mother had obtained an 'apprehended domestic violence order' in the Australian courts.  The mother then wrongfully removed the child from Australia to England in February 2011, and the father issued his application for return shortly thereafter. 

The father ('S') appealed from the decision of Charles J given on 30 August 2011 refusing his application for a return order under the Hague Convention.  The mother had asserted an Article 13b 'defence', based upon: largely contested allegations of abuse at the hands of the father; and the effect upon her mental health of being forced to return.  At the initial hearing in June 2011, directions had been made that 'drew inspiration' from paragraph 36 of Re E.  The directions listed the application as follows:

(a) For consideration of whether, taken at their highest, the allegations made by the mother would come within the Article 13b exception having regard to the proposed undertakings / protective measures

(b) For consideration of whether there is an arguable basis for asserting that the father consented [this aspect of the case was not in issue on appeal]

(c) Subject to the court's conclusions as to (a) and (b) above, summary disposal or directions to enable a further hearing with such oral evidence as the court considers appropriate to take place.

At the two day hearing in July, Charles J followed these directions, and adjourned the case part-heard to allow further evidence about protective measures.  The judge, in part, relied upon Re E to support his view that the court had to investigate the issue of protective measures more fully.  The parties jointly instructed a consultant psychiatrist to report upon the mother's mental health in the interim. 

The expert reported that the mother's mental health was currently 'stable and healthy', but that a return to Australia – and re-exposure to her source of stress, i.e. the father – would be likely to cause a 'significant and severe' psychological impact.  The expert did not address what protective measures could be sought, and whether these would remove or reduce the risk to the mother's mental health; and neither party called the expert to give oral evidence at the adjourned hearing. 

Despite undertakings that provided for the mother to have 'a home and a full and appropriate package of support' in Australia, the judge concluded that the situation upon return would nevertheless give rise to an Article 13b risk.  In his assessment of the factors contributing to the risk of harm, Charles J referred to the stress that would be caused to the mother in having to issue a relocation application in Australia.  In addressing the second limb of the earlier directions, he held that his conclusion on the Article 13b issue would be the same even if the disputed allegations made against the father were not true.  Having come to these conclusions, he exercised his discretion not to return the child.

The Court of Appeal accepted the three arguments advanced on behalf of the father on appeal, which were as follows.  First and foremost, the Court of Appeal confirmed that Re E 'is a restatement and not an evolution of the law of the Convention' [paragraph 34].  Charles J was criticised by counsel for the father for treating Re E as having 'raised the bar' against return when an abductor relies on their subjective perception leading to psychological harm.  Secondly, Charles J's reasoning as to the adequacy of protective measures was found to be deficient, largely because there had been no expert evidence to say that the assurances offered would be inadequate, and also because the return would be to a jurisdiction in which the English court could have confidence.  Leading counsel for the mother (who had not appeared below) argued on appeal that the proposed protective measures were 'largely irrelevant' [paragraph 31], as the case hinged upon the mother's subjective perception of, and reaction to, a forced return.  This analysis was not accepted by the Court of Appeal.  Finally, the Court of Appeal was 'troubled' by the Judge's view that the stress of an anticipated relocation application by the mother upon return was a factor elevating the Article 13b risk [paragraph 44].  The Court of Appeal therefore allowed the appeal and ordered the return of the child. 

The Court of Appeal also commented that the form of directions made at the outset of this case should not be used in future, and that the judgment in Re E should not have been interpreted as requiring such an approach [paragraph 50].

Issues raised by S v C
The following points arising from S v C merit some analysis:

Whether or not Re E requires a different approach to Article 13b
To the extent that Charles J held that Re E required a 'less robust' approach to Article 13b generally, it is unsurprising that the Court of Appeal overruled him.  It is right to say that Re E simply confirmed that Article 13b should be construed 'without gloss'.  The Court of Appeal in S v C found that Charles J had interpreted Re E as 'militating against' the father's application for return [paragraph 32], and therefore he had misdirected himself. 

However, those parts of the interim and final judgments below which are repeated by the Court of Appeal in S v C (the full judgments are not available) suggest that Charles J was particularly concerned with ensuring the correct approach to protective measures in the light of Re E.  He could be forgiven for this element of his reasoning, given that Re E emphasised the importance of such measures in cases concerning disputed allegations. The Supreme Court urged the Hague Conference 'to consider whether machinery can be put in place whereby, when the courts of the requested state identify specific protective measures as necessary…then those measures can become enforceable in the requesting state' [paragraph 37 of Re E].  Appropriate enquiries into protective measures are certainly necessary and important in most Article 13b cases; perhaps Charles J's mistake in S v C was that he seemed to elevate the acknowledgement of this principle into a new and higher hurdle for a left-behind parent to clear. 

Case management directions where there are disputed allegations
In terms of case management in disputed allegation cases, the reaction of the Court of Appeal to the form of the early directions was quite strong.  At the conclusion of the judgment, Thorpe LJ said that the trial was 'bedevilled' by these directions, and that he '[does] not believe that the Supreme Court intended that paragraph 36 of the leading judgment should introduce a new practice.  If this practice has sprung up since June it should be immediately stifled' [paragraph 50]. 

A legitimate concern about such directions might be that they could lead to an extended legal process, if there has to be both a preliminary issue hearing, and then a further final hearing if the case cannot be decided at the first stage.  However, in terms of the questions that are posed, it must be right that any court has to deal with these issues in the order provided for by the directions.  The fact that the Court of Appeal does not agree that there should be any change to usual case management does not mean that this paragraph of Re E should be ignored.  It is still a useful distillation of the applicable principles, and should help parties to focus on whether any Article 13b case really has 'legs'. 

'Subjective' and 'objective' perception of risk
The issue of the mother's mental health in S v C gave rise to what is perhaps the most interesting aspect of the judgment.  S v C was, like Re E, an Article 13b case in which the mother relied on the likely psychological impact upon her of a forced return.  It was argued that the evaluation of protective measures in this case was 'almost irrelevant, since nothing would satisfy the mother's subjective anxiety arising from her subjective perception of risks and consequences of return' [paragraph 31].  Paragraph 34 of Re E was relied upon, in which the Supreme Court referred to leading counsel for the father's concession that: 'If there is [an Article 13b risk] the source of it is irrelevant: e.g. where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child'. 

Thorpe LJ in S v C said that paragraph 34 of Re E is not 'authoritative for the proposition that it is unnecessary for the court to weigh objective reality of asserted anxiety' [paragraph 43].  Thorpe LJ said that the 'crucial question' for the judge remained: 'were these asserted risks, insecurities and anxieties realistically and reasonably held in the face of the protective package?'

In any case that turns on an assessment of the abducting parent's likely mental health upon return, the assessment of risk is necessarily going to be 'subjective' to an extent, because it relates to the particular psychological or psychiatric state of the abducting parent.  Whether or not a particular event (such as a violent attack by an ex-partner) is likely to occur upon return may not be the main issue – the Article 13b risk to the child is created by the parent's subjective perception of, and subjective reaction to, a forced return.  As Re E confirmed, the exceptions are welfare based, and the Court must simply consider whether an Article 13b risk to the child is actually established. 

However, in most cases of this type, the alleged subjective perception of the abducting parent will be interwoven with the background facts – facts that may well be disputed.  It is therefore difficult entirely to separate the issues of subjective and objective assessment of risk.  For example, if there is cogent evidence of bad behaviour by a left-behind parent, it is surely more likely that the court will be sympathetic to an abducting parent's case as to their likely subjective perception upon return. 

It is important to remember that the approach to the question of Article 13b risk has two elements: whether the abductor's case at its highest creates a grave risk to the child; and if so, whether any protective measures can be put in place to ameliorate this.  The first aspect may be largely subjective if it is a 'mental health' case; the second stage will involve the court's overall assessment of the risks to the child in the light of any evidence about protective measures, and is bound to involve at least some element of objective assessment of the likely situation upon return. 

The real problem for the mother in S v C was that the alleged risk was based mainly on her likely mental health upon return, but there was no expert evidence to say that the measures offered by the father would be insufficient to ameliorate the stated risks.  The expert's evidence about the likely deterioration in the mother's mental health was in the context of a return to the mother's previous situation, and 're-exposure' to the father, rather than within the 'cocoon' of protective measures that was being offered as a result of the Hague Convention proceedings.  Charles J had to perform his own assessment of this issue, and the Court of Appeal disagreed with his conclusion – it was a 'disproportionate' reaction, as put by the father's counsel.  

In terms of the argument about 'subjective perception', Thorpe LJ said that no case had been cited showing that 'the effect of a respondent's clearly subjective perception of risks on return leading to an intolerable situation for the child is a permissible ground for refusing a return' [paragraph 49].  The case cited on behalf of the mother, Re G (Abduction: Psychological Harm) [1995] 1 FLR 64, where an abducting parent's likely reaction to a return would be to render her almost psychotic, was distinguished, because in Re G there had been expert evidence that was accepted by the court.

Thorpe LJ did not say that Re G was wrongly decided; he said that that case was different because there had been clear expert evidence.  So, Thorpe LJ presumably was not saying that there could never be a case where the effects of a parent's subjective perception of, and reaction to, return would establish an Article 13b 'defence'.  The difference was that in Re G, there was cogent and compelling evidence of the risk to the child from an independent source, the psychiatrist, not just from the mother's assertions.  There is also of course a difference between a mother saying that her subjective perception is that certain risks will actually exist upon return – e.g. if she does not accept that she will be protected from violence – and a mother saying that because of her subjective perception of events, the effect will be that her mental health will deteriorate such as to cause grave risk to the child.  The first situation is unlikely to result in a successful 'defence' under Article 13b, if the court has objective evidence that protective measures will be effective; the second may do, but it is likely that very clear expert evidence would be needed as well. 

We have probably not seen the last of the issues raised by Re E and S v C.  In particular, the 'subjective / objective' assessment of risk is surely an area that is ripe for further argument.  In S v C, the Court of Appeal was keen to settle the point that Re E was not intended to change the law, nor to alter established practice and approach to Article 13b cases; time will tell if this aim has been achieved.