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Return to a ‘third state’: S (A Child) (Hague Convention 1980: Return to Third State)

Pam Sanghera of Charles Strachan Solicitors represented the appellant mother in the successful appeal of an order requiring the summary return of a child “A” to a state which was not the child’s previous habitual residence, ie to a third state. In this article she explains the reasoning by which the Court of Appeal determined that the order could not stand because it was effectively a relocation order made without undertaking any welfare exercise, which in itself is not within the framework of the 1980 Hague Convention.

Pam Sanghera of Charles Strachan Solicitors

Background summary of S (A Child)
The parents are both Hungarian nationals. The father applied for the return of the child under the Convention on the Civil Aspects of International Child Abduction 1980 ('the Hague Convention') and Article 11 of Council Regulation (EC) 2201/2003. Unusually, the father sought the "return" of the child to Hungary which was not the country of the child's previous habitual residence.  The child was in fact habitually resident in Germany immediately prior to removal/retention.

The mother opposed the application for return and relied upon Article 13(b) of the Hague Convention as her defence, namely that there was a grave risk of physical or psychological harm to the child if he was returned to Hungary. As part of this argument, the mother stated that it was exceptional to order return to a country other than that of the child's habitual residence, and that factor ought to be considered in conjunction with the Article 13(b) defence.

It is important to set the scene in relation to the father's offered protective undertakings. The father was ordered to file evidence setting out (i) a full account of the circumstances in which he came to England and subsequently assaulted the mother, (ii) the jurisdiction to which he sought the child's return (as his application initially stated either Germany or Hungary), (iii) if he sought the child's return to Germany, his proposals as to the child's maintenance, accommodation and education there, and (iii) a statement which included the "protective undertakings he offered in the event that the child was summarily returned".

The father stated that he would prefer the child to be returned to Hungary but would leave it to the Court to decide whether they (the mother and child) should return to Germany rather than Hungary. The father also stated that it was the mother's attitude towards a return to Germany or Hungary that caused him to assault her which he deeply regretted. The father also stated that he was prepared to "give all of the usual undertakings" as required by the mother or the Court to protect them on their return.

The mother relied on Article 13(b) and informed the Court that she was a victim of domestic violence and abuse. She alleged the father had mental health issues which also affected his behaviour.

Unsatisfied with the term 'the usual undertakings', the Judge adjourned the final hearing to enable the father to provide "a written and signed schedule of the undertakings which he was prepared to offer, including evidence in support to secure the return of A to Hungary".

The father's subsequent evidence was limited but included a letter from his Hungarian lawyer which purported to state that he had "started the procedure under Hungarian procedural law" in respect of the child. There were other documents that accompanied this statement which were not translated from Hungarian into English.

Order for summary return to Hungary
At the adjourned hearing on 15th January 2019, Mr Justice Cobb ordered that the child should be returned to Hungary. The order listed the undertakings offered by the father and contained recitals including the undertakings given which had been accepted by the Court pursuant to Article 11 of the 1996 Convention; that they were "binding and enforceable obligations in this jurisdiction" and were intended to "constitute binding and enforceable obligations in Hungary" and that they were "measures" within the 1996 Convention as well as under Regulation (EU) No 606/2013.

The undertakings given by the father included:

(a) not, in summary, to molest the mother or A,

(b) not to remove A from the mother's care and control and that pending a decision of the Hungarian Court, A would remain in the mother's care,

(c) to submit to supervised contact with A until welfare issues could be considered by the Hungarian Court,

(d) to provide and pay for an identified property for the mother and A's sole occupation until 1st March 2019 and an equivalent property thereafter pending the decision of the Hungarian Court,

(e) to pay the mother maintenance for herself and A at a stipulated rate until the Hungarian Court could be seised of the issue of financial support,

(f) not to come within a specified distance of the property occupied by the mother and A,

(g) to submit to the jurisdiction of the Hungarian court and to "co-operate to bring this matter before the Hungarian Court for the purposes of determining care, contact and welfare issues."

In determining this matter, Cobb J observed that the father's comments in respect of the offered undertakings were largely generalised and fell short of the onus on him under Article 11(4) of Brussels II. Cobb J also identified that the father's evidence contained contradictory information and that he was not clear whether he sought an order for return to Germany or Hungary. Upon instruction, the father confirmed to the Court that he sought an order for return to Hungary and would offer the necessary undertakings to secure that return.

Cobb J found that there had been a history of domestic violence and that a defence under Article 13(b) was made out. Cobb J, however, found that the risks associated with this defence had been alleviated by the father's proposed undertakings which, Cobb J stated, "were robust and efficacious enough to protect A from grave risk of physical or psychological harm".

In respect of the return to a third state, Cobb J stated that such a return was not "exceptional", as the mother's case suggested, but was instead "unusual". Cobb J went on to state that "the mother would be more greatly disadvantaged had an order for a return to Germany been made, at least in Hungary the mother has family support".

Permission to appeal
Moylan LJ granted permission to appeal this order on the basis that sufficient issues were raised in respect of the challenge to the decision to return the child to a 'third state' and to challenge the 'robustness of the protective measures'.

Appeal submissions summary
Lord Justices Longman, Baker and Moylan heard the appeal at the Court of Appeal on 19 February 2019. Prior to the hearing itself, the International Centre for Family Law, Policy and Practice (ICFLPP) were given leave to intervene. 

The mother's case was argued on the basis that Cobb J had effectively made an order for the child's relocation which was not only not an order under the 1980 Hague Convention, but was an order contrary to Article 16 which expressly provides that the requested state 'shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention'.

It was argued that the order made was effectively a welfare determination without any welfare exercise having taken place. It was argued that by returning A to a third state, the court was supporting the father's unilateral decision to move to Hungary. It is important to note that Cobb J had been satisfied that the mother was a victim of domestic violence, so that the decision as to which country the child should return to was effectively made by the perpetrator of domestic violence to the mother and this was argued to be supported by the Court.

It was further argued that a decision determining that a child should move to live somewhere other than the state of habitual residence was a decision engaging the merits of rights of custody.

A fundamental feature of this case was the mother's argument that the Judge failed to consider, as an implication of a return to a third state, the robustness of protective measures. Hungary plainly did not have jurisdiction to make decisions concerning parental responsibility. There was no evidence before the Court as to how the undertakings given by the father would be enforceable in Hungary.

The father countered this by arguing that the return to Hungary was because of the child's and the parents' connections with that state and the mother had stated she did not like living in Germany. The father did not accept that the Judge had made the decision based on the father's unilateral decision to return to Hungary, rather it was made based on all of the circumstances including the mother's view that Hungary was preferable to Germany.

The father further argued that the undertakings had been properly considered and, specifically, consideration had been given to whether they would 'address or ameliorate the risk of future harm'.

Written submissions were made on behalf of the ICFLPP which supported the existence of the power under the 1980 Hague Convention to order that a child be returned to a third state.

Appeal decision
Moylan LJ firstly addresses the expression 'protective measures' which has a wide meaning, as he set out in Re C (Children)(Abduction: Article 13(b)). The focus should not necessarily be on 'protective undertakings' which can be said to narrow the scope of protective measures. The Practice Guidance of Case Management and Mediation and Information Child Abduction Proceedings dated 14 march 2018 refers to protective measures (including orders that may be subject to a declaration of enforceability or registration or, where appropriate, undertakings). Moylan LJ re-emphasised 'the need for caution when relying on undertakings', as originally emphasised in Re C.

The Court commented that The Hague Conference on Private International Law is expected to publish a Guide to Good Practice on Article 13(b) of the 1980 Hague Convention. It is hoped this will refer to the need to consider whether, when undertakings are being relied upon, they can be made enforceable in the requesting state and if not, that they should be used with caution when being relied on as measures to protect against an Article 13(b) risk. It will also differentiate, it is hoped, between protective measures and practical arrangements in relation to facilitating a return.

Moylan LJ added:

"The more weight placed by the Court on the protective nature of the measures when determining the application, the greater the scrutiny required in respect of their efficacy".

Ultimately, it was determined that the order made returning A to Hungary was in effect a relocation order. It was not a summary return order to the state of A's habitual residence at the date of the wrongful removal or retention, namely Germany. It was also not a return order to the state in which the custodial parent had moved. Moylan LJ stated: "It was an order which required the mother to move to a state with which she and A clearly had a connection but in which they had not been living and to which there was no existing agreement or arrangement that they would move".

Compared with the decision in Re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre Intervening) 2014 AC 1017, the applications in this case had been made under both the 1980 Hague Convention and under the inherent jurisdiction. An order for return, however, was made under the inherent jurisdiction following a 'welfare based custody hearing'.

Moylan LJ concluded that Cobb J's approach was confined to the structure of the Hague Convention and was not a welfare determination. Furthermore, Cobb J 'insufficiently examined 'in concrete terms the situation' which would exist in Hungary, in particular in respect of jurisdiction'. It was unclear whether Cobb J's conclusion that the undertakings were 'effective' was supported by his reasoning. Exploring this further, Moylan LJ observed that Cobb J provided no explanation for his conclusion that the father's undertakings were 'effective to neutralise the grave risk'. It is questioned whether this was based on a conclusion that the father could be relied upon to comply or whether it was based on them being effective in Hungary.

The undertakings were expressed to provide 'short term protection to the mother and to A only pending the engagement of the Hungarian court'. It was unclear as to the extent of the Hungarian court's jurisdiction or powers. The Court of Appeal had the benefit of English translations of Hungarian documents that had been considered by Cobb J, albeit interpreted into English by the Court interpreter. The content, however, contrasted with Cobb J's understanding that child welfare proceedings had 'apparently been initiated' in Hungary. This was not the case.

The Court of Appeal concluded that Cobb J's order that A be returned to Hungary could not stand. It was a welfare determination without any welfare assessment having been undertaken. It was further concluded that the Judge's reasoning as to the efficacy of the protective undertakings provided in the case was insufficient to support his conclusion that they were 'effective'.

There was no other order which would be appropriate to make under the Hague Convention. It was commented that any application under the inherent jurisdiction could be made separately and did not need the application under the Hague Convention to continue, hence it was dismissed.