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D (Children)[2006] EWCA Civ 146

The court upheld a mother’s defence to an originating summons on the grounds of Article 13(b) of the Hague Convention 1980.

Court Of Appeal: Thorpe LJ, Wall LJ, Coleridge J (25 January 2006)

The court upheld a mother's defence to an originating summons on the grounds of Article 13(b) of the Hague Convention 1980.

The father (American) and the mother (English) had two children, aged 7 and 5. Between the births of the two children the family established itself in Caracas, Venezuela. Without the consent of the father or a local court the mother removed the children to this jurisdiction on 20 April 2002. The father issued an originating summons under the Hague Convention 1980 and an order for return was made on 18 October 2002. The children were then resident with their mother with liberal contact to the father. There were ongoing court proceedings, including the mother's application to leave the jurisdiction. However, on 28 June 2005 the mother suffered what was described by Macur J as a "pre-meditated, targeted and serious firearm assault" by persons unknown to the mother. It later transpired that the father had suffered similar attacks, and a perpetrator had admitted being paid to carry out the attacks. In response, the mother successfully applied to accelerate her summer holiday to this jurisdiction with the children. Upon arrival the mother cancelled the return flight and issued wardship proceedings. The father issued an originating summons under the Child Abduction and Custody Act 1985 for an order for peremptory return. Macur J upheld the mother's defence on the grounds of Article 13(b) of the Convention. The father appealed.

The father appealed on three grounds; firstly, the judge's evaluation of the mothers evidence; secondly, the judge's acceptance of the expert evidence; thirdly, the consideration of the continuing Venezuelan proceedings. Lord Justice Thorpe described this as "an exceptional case on any yardstick". Consequently, he sought to put the father's three grounds of appeal in a proper context looking at the risk of abuse and resultant harm to the mother and to the children after return. The judge distinguished this case from previous cases concerning a generalised risk within a state, as the risk of harm here was specific and targeted. Lord Justice Thorpe expressed his opinion that the physical risks alone would have been sufficient to establish the defence of Article 13(b). However, Macur J had made further findings in relation to the emotional harm the children would suffer if there was an enforced return to their habitual residence.

The grounds of appeal were addressed by the court but Lord Justice Wall stated that they did not seem to undermine the judge's careful evaluation of the fundamental Article 13(b) risk.

In response to the father's first ground of appeal Lord Justice Thorpe clarified that in weighing the evidence of an abductor seeking to justify or explain conduct, the judge needs to subject the evidence to rigorous and perhaps sceptical scrutiny, particularly where, as here, there was a history of previous abduction and an outstanding application for permission to relocate. The court reiterated that cases in which a court validates such conduct must be exceptional as the abducting parent achieves the desired goal by unlawful, rather than lawful, means. However, Lord Justice Thorpe confirmed that even if the father had established that the mother's motivation was to effect a wrongful removal and that she had intended to breach the Venezuelan order, all that was out-trumped by the awful events of 28 June 2005. The real issue in the case was what would be the effect on the children, were the court to order their return. Therefore, the appeal grounds ignored the underlying realities. Appeal dismissed.

Read the full text of the judgment here