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Re A (Children) (Abduction Article 13(b) [2021] EWCA Civ 939

The Court of Appeal granted the mother’s appeal against an order of Mrs Justice Judd which required the mother to return the children to the USA, having concluded that the judge had not applied the guidance set out in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144.

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Factual background

A and B, aged 4 and nearly 3, are the children of both parents. The father was born and lived in the USA until moving here for work in 2014. The mother had always lived in England before she moved to the USA with the children in November 2019. She has a 14-year-old daughter, C, who is not the subject of proceedings. C has always lived with her mother and formed part of the family unit after the parents met and married. The parents agreed to move to the USA because of the father's work; he moved in February 2018 and there was a lengthy period when the mother was the children's sole carer in this jurisdiction. B was born during this time.

Very soon after the family was reunited there were escalating tensions in the parents' relationship and between the father and C, whose position in the household had become untenable. The mother clandestinely removed the children on 4th May 2020, returning to England.

The father then came to England himself, with some hopes of a reconciliation with the mother. He applied in September 2020 for the children's return to the USA pursuant to the 1980 Hague Convention.

The mother asserted that the children were not habitually resident in the US at the date of their removal and that the father had acquiesced in their remaining in England (Art 13(a)) She also made serious allegations against the father of domestic violence towards her and physical and emotional abuse of C and A, claiming that there was a grave risk that returning A and B to the US would expose them to physical or psychological harm or otherwise place them in an intolerable position (Art 13(b)). A complicating factor was that she was clear that if the court ordered the children's return to the US, she would not accompany them; she was unwilling once again to uproot C, who had "been through a traumatic time" in the US.

The appeal

There was no appeal against the judge's finding that the children were habitually resident in the USA at the date of removal.

The mother's grounds were that the judge had taken the wrong approach to the issues of grave risk and acquiescence and that C's voice was inadequately reflected in the proceedings. The last ground was not considered to add anything of substance to the appeal.

Law

Moylan LJ sets out the relevant law at paragraphs 81-99. At §85-86 he stresses that the focus of Article 13(b) is on the risk to the child in the event of a return. At §88-90 he confirms the that the effect of the separation of a child from the "taking parent" can, in itself, establish grave risk; this defence cannot be excluded just because that parent's own conduct in removing the child created the situation.

At §91-99 Moylan LJ discusses the proper approach to the evaluation of a 13(b) defence given the summary nature of Hague proceedings, with reference to of Re E (supra). The court is not wholly precluded from an evaluative assessment of the allegations but must be careful when conducting a paper evaluation and "should not"…"discount allegations of physical and emotional abuse merely because he or she has doubts as their validity or cogency". (§92-95)

If the judge concludes that the allegations would potentially establish the existence of a grave risk the court must ask how the child can be protected against that risk. The "clearer the need for protection, the more effective the measures will have to be." (Re E §52) Moylan LJ warned that if the Re E approach is not taken there is a risk that the allegations will be treated less seriously than they deserve, if true, and that the court will not properly consider the available protective measures. (§97-98)

Determination

The judge had taken the correct approach to the acquiescence defence and had carefully analysed the evidence in that respect.

It was clear however that she had not approached the 13(b) defence as endorsed by the Supreme Court in Re E. The judge had not decided that she could "confidently discount the possibility" that they gave rise to a 13(b) risk. The allegations were "of a nature and of sufficient detail and substance to warrant a careful analysis" using the Re E approach. (§109)

The judge had wrongly discounted the mother's allegations, referring to evidence that in her view undermined them without having regard to the other evidence on which the mother relied. Further, she should not have discounted allegations of physical and emotional abuse on the basis that the family was under considerable stress.

Having discounted the allegations in this way she did not go on to analyse whether, if true, they would potentially create a grave risk, nor how any such risk could be mitigated. Her judgment did not properly recognise the effect on these young children of being placed in the care of a father against whom serious allegations of abuse had been made.

As all the evidence was before the Court of Appeal, it was able to determine the proper outcome without the need for a rehearing. (§116-124) There was no doubt that if the mother's allegations were true there would be a grave risk of physical or psychological harm if A and B were abruptly placed in their father's sole care. No protective measures could address that risk and the mother had a valid reason for not returning. While it was not necessary to decide whether separation from their primary carer would in itself (absent the abuse allegations) establish the necessary grave risk, it was a reinforcing factor and relevant to the exercise of discretion. The application for a return order was dismissed.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII