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A (Child Abduction Article 13b) [2021] EWCA Civ 328

Successful appeal from an order for the summary return of a child to the USA in light of new evidence

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The case concerned J, a child, who was 3 years old at the time of the proceedings. J's mother was English and J's father was American. They married, and in 2016 the mother moved to live in Virginia, where J was born in 2017. The mother maintained that the relationship was characterised by significant domestic violence, causing the mother to suffer from depression and anxiety. The father denied all of the allegations.

On 31 December 2019, the mother travelled with J to England, the father having agreed to them coming here until April 2020. On 21 February 2020, the mother applied for a domestic violence injunction against the father in the Family Court. The father subsequently issued proceedings for J's summary return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("the Convention"). The mother opposed the application on the basis of Article 13(b). It was argued on her behalf that the child would be subject to grave psychological and/or physical harm if forced to return to the USA because of the risks of (i) domestic violence and (ii) the mother's mental health deteriorating, thereby affecting her ability to care for the child. 

On 9 December 2020, the Judge ordered that J should be returned to the USA within 14 days of the mother being notified by the father's solicitors that the court in Virginia had approved a "Consent Child Custody Order" under which the parents would have joint legal custody of J, with the mother having temporary primary care. The father provided an extensive series of undertakings to the English court, for inclusion in the "Consent Child Custody Order." Whilst the Judge accepted that the mother's allegations were of a gravity that was capable of engaging Article 13(b), she had not established that the exception applied. In particular, he did  not accept that a return to the USA would destabilise her parenting to a point where J's situation would become intolerable.

The mother made an application to appeal the decision, arguing that having found that her allegations were of a nature to engage Article 13(b), the Judge was wrong to grant the father's application and failed to take account of: (i) The profound effect on the mother of the father's coercive and controlling behaviour; (ii) The mother's isolation in the USA compared to England, and the effect that this would have on her mental health; and (iii) Dr Ratnam's evidence about what would be necessary to prevent a deterioration in the mother's mental health if she returned to the USA.

Further, the mother issued an application asking the court to admit further evidence in the form of (i) expert evidence from an American lawyer about the enforceability of undertakings and availability of legal aid; and (ii) updating reports from her GP and her IDVA. The former was refused as no report had been provided. In respect of the latter, since the proceedings had completed, the mother's mental health had deteriorated significantly, to such an extent that the mother and J had to move in with the maternal family because it was no safe for her to parent J alone. The Court of Appeal admitted the evidence from the mother's GP and IDVA, as it was capable of influencing the result of the appeal.

The Court of Appeal held that the first instance Judge had "meticulously" and "methodically" [31] reviewed all the evidence, and his decision to return J to the USA which one he was entitled to reach on the evidence before him. However, based on the further evidence concerning the mother's mental health and family support, the Court of Appeal did not think that the Judge's order could stand. As such, the court allowed the appeal, set aside the return order and remitted the matter to the first instance Judge.

Case summary by Bianca Jackson, Barrister, Coram Chambers

For full case summary, please see BAILII