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The Supreme Court's Decision in Re E (Children) (FC) and the Article 13(b) Defence – Initial Considerations

Jacqueline Renton, Barrister, of 4 Paper Buildings, offers some initial thoughts on the Supreme Court's judgment in Re E (Children)

Jacqueline Renton, barrister, 4 Paper Buildings

Jacqueline Renton
, Barrister at 4 Paper Buildings

The Supreme Court judgment in Re E (Children) (FC) [2011] UKSC 27 has been eagerly awaited by practitioners and judges working in the field of international child abduction. Re E (Children) addresses the appropriate test to be applied by a court when assessing an article 13(b) harm defence under the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the Hague Convention 1980").

The domestic violence allegations that underpinned the defendant's article 13(b) defence represent a factual matrix that is of a familiar nature in today's Hague world. Many defendants plead allegations of domestic violence as the main reason for 'fleeing' the requesting state with the child/ren. Indeed, as the Supreme Court comments, in recent times the typical situation in a Hague case is that of a primary carer mother who has abducted the child/ren as a result of the breakdown of the parents' relationship. By contrast, when the Hague Convention 1980 was instigated, there was every indication that the paradigm case was the abduction of a child/ren by a dissatisfied parent who was not the primary carer.

Since the Grand Chamber of the European Court of Human Rights ("ECtHR") delivered judgment in the case of Neulinger & Shuruk v. Switzerland (Application no. 41615/07), the international legal community has been concerned as to whether this judgment had the effect of lowering the threshold raised under article 13(b) harm. Paragraphs 138 - 139 were cited as suggesting that a best interests assessment of the child's circumstances needed to be undertaken before a return could be ordered, and that such a process would erode the summary nature of Hague proceedings.

Paragraphs 138 – 139 states:

"138. It follows from article 8 that a child's return cannot be ordered automatically or mechanically when the Hague Convention is applicable. The child's best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences... For that reason, those best interests must be assessed in each individual case. That task is primarily one for the domestic authorities....

139. In addition, the court must ensure that the decision-making process leading to the adoption of the impugned measures by the domestic court was fair and allowed those concerned to present their case fully.... To that end the court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining that the best solution would be for the abducted child in the context of an application for his return to his country of origin (see Maumousseau and Washington... para 74."

It is worth noting that prior to Re E [2011], unsuccessful attempts had been made at first instance in this jurisdiction to argue that the article 13(b) threshold had been lowered as a result of Neulinger. See, for instance, Re T [2010] EWHC 3177 (Fam) where the court comments that Neulinger is not a warrant for allowing the defences to be approached in a broad or liberal manner, and that Neulinger should not be seen as a "sea change" or "seismic shift" in the way that Hague Convention 1980 cases should be approached. Further, experience showed that High Court Judges were not acceding to requests by Defendants pleading an article 13(b) harm defence for their final hearing to be adjourned pending the Supreme Court's guidance in Re E [2011].

The judgment in detail
The Supreme Court unanimously dismisses the appeal. Baroness Hale of Richmond and Lord Wilson give the judgment for the court. There are five key aspects to the judgment:-

(1) Defining best interests;
(2) The impact of Neulinger;
(3) Removing the 'gloss' under article 13(b);
(4) Consideration as to protective measures;
(5) The impact of the non-subject child.

1) Defining best interests
The Supreme Court draws attention to the fact that article 3.1 of United Nations Convention on the Rights of the Child ("UNCRC") states: "the best interests of the child shall be a primary consideration." A primary consideration is not the same thing as "the primary consideration" or "the paramount consideration": see ZH (Tanzania) (FC) v Secretary of State for the Home Department [2011] UKSC 4. Further, s.1(1) of the Children Act 1989 does not apply in Hague cases so as to make the child's best interests "the paramount consideration."

The Supreme Court makes clear that both the Hague Convention 1980 and Brussels II Revised Regulation 2003 ("BIIR") were devised with "the best interests of children generally, and of the individual children involved in such proceedings, as a primary consideration": [18].

The Preamble to the Hague Convention 1980 states:

"firmly convinced that the interests of children are of paramount importance in matters relating to custody.... desiring to protect children internationally from the harmful effects of their wrongful removal or retention".

The Supreme Court observes that the Hague Convention 1980 creates 'rebuttable presumptions' as to what will best achieve and safeguard the best interests of the child, it being important to note that the best interests of the child should be considered in tandem with the other policy of the Hague, namely that of deterrence.

With regard to the Brussels II Revised Regulation 2003 ("BIIR"), the Supreme Court states it is designed to ensure that the best interests of children are a paramount consideration. Such a contention is supported by Recital (12) of BIIR: "the grounds of jurisdiction in matters of parental responsibility...are shaped in light of the best interests of the child....", together with article 11(4) of BIIR which states that the voice of the child should be heard in appropriate cases and the article 11(6)-(8) procedure that can be utilised if a non-return under article 13 is ordered ('the second bite of the cherry').

Accordingly, if these international instruments are properly applied, the court will be complying with article 3.1 of UNCRC. Indeed, this was also the conclusion of the ECtHR in Maumousseau and Washington v France (Application No 39388/05).

It should be noted that when considering the impact of article 3.1 of UNCRC, the Supreme Court did not draw attention to the other provisions under UNCRC that had been referred to by the plaintiff father, in particular article 11 which requires that:

"11.1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.

11.2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements"

and article 3.2:

"3.2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures."

It certainly seems though that articles 11 and 3.2 buttress the Supreme Court's assessment of the application of article 3.1 of UNCRC to Hague cases.

The Supreme Court's judgment on the applicability of article 3.1 of UNCRC is significant. It supports the dual intentions of the international community when drafting the Hague Convention 1980 and BIIR – namely, to ensure a summary process, but also to protect the child's best interests. Further, it provides reassurance that these principles are compliant with the developments in human rights jurisprudence, despite the passage of time since the instigation of the Hague Convention 1980. This is an important recognition of the fundamental and unshakeable tenets of child abduction policy and jurisprudence. Indeed, by contrast, other areas of policy and law – such as immigration – have been significantly altered by human rights jurisprudence.

2) The impact of Neulinger
The Supreme Court makes clear that the Grand Chamber of the ECtHR determined that there would be a disproportionate breach of the child's rights under article 8 of European Convention on Human Rights 1950 ("ECHR 1950") (right to a private and family life) if a return was ordered due to the passage of time since the child had been removed from Israel to Switzerland (5 years), not the application of the Hague Convention 1980 by the Swiss courts.

The Supreme Court emphasises that Neulinger must not be viewed in jurisprudential isolation, but must be seen in the context of other ECtHR cases dealing with international child abduction, in particular Maumousseau. In Maumousseau, the child had been wrongfully retained in France. The Cour de Cassation overturned a return of the child to the jurisdiction of the United States of America. The ECtHR did not accept there was a breach of article 8 of ECHR 1950 or article 6 (right to a fair trial) by virtue of a return being ordered. Both the Hague Convention 1980 and article 3 of UNCRC were considered. The ECtHR makes clear that a return should not be ordered under the Hague Convention automatically or mechanically, and that the child's best interests were always taken into account when determining the case. Accordingly, the child's best interests were safeguarded by the return being ordered.

Further, the Supreme Court draws attention to the extra-judicial comments of the President of the Strasbourg Court on 14th May 2011 (in a paper given at the Franco-British-Irish Colloque on family law) in which he states:

"The logic of the Hague Convention is that a child who has been abducted should be returned to the jurisdiction best-placed to protect his interests and welfare, and it is only then that his situation should be reviewed in full. Neulinger does not therefore signal a change of direction at Strasbourg in the area of child abduction".

Ultimately, the Supreme Court determines that article 8 of the ECHR 1950 does not 'trump' the Hague Convention 1980. Instead, in the majority of cases (there always being room for the exceptional case), article 8 considerations are already taken into account within the Hague Convention 1980. As with the Supreme Court's analysis of article 3 UNCRC, this provides reassurance that the policy and legal principles underpinning the Hague Convention 1980 are human rights compliant.

3) Removing the 'gloss' under article 13(b)
The Supreme Court makes clear that no additional 'gloss' should be imported into a court's consideration of an article 13(b) harm defence. The words under article 13(b) are plain and should not be narrowly constructed. As the House of Lords states in Re D (Abduction: Rights of Custody) [2006] UKHL 51 at [51]:

"there must be circumstances in which a summary return would be so inimical to the interests of the particular child that it would also be contrary to the object of the Convention to require it. A restrictive application of article 13 does not mean that it should never be applied at all."

The key points of the Supreme Court judgment are as follows:

(a) The risk to the child must be "grave". The issue of gravity characterises the risk to the child, not the harm, but it is difficult to not conjoin the two concepts;

(b) The concept of "intolerability" helps shape the words "physical or psychological harm". The court makes clear that exposure of a child to hearing or seeing their parent being abused can satisfy the criteria under article 13(b);

(c) It is important to recognise that when assessing harm / intolerability under article 13(b), the court is not simply bound to look at the immediate future of the child, but can take a longer-term perspective in situations where the need for effective protection of the child in the requesting state will persist long after the return has taken place.

A removal of the 'gloss' of article 13(b) is important. The threshold inherent with an article 13(b) defence is already high, but there must remain scope for a defence to be successfully raised so as to ensure that the rights of the parents and child/ren are fairly balanced. In many cases, article 13(b) defences are pleaded which fall far short of the requisite threshold, but in those cases where it is difficult to determine whether the defence is established it will be interesting to see whether the Supreme Court guidance will have an impact.

4) Consideration as to protective measures
The Supreme Court states:

"the change in the likely identity of the abductor places a premium on the efficacy of protective measures which was not so apparent when the Convention was signed,": [7]

It is well-known that because of the summary nature of Hague proceedings, the court cannot, and should not, attempt to resolve the factual disputes between parties at first instance in respect of allegations relating to an article 13(b) harm defence. The Supreme Court accepts that in such cases, allegations can be assumed to be correct and consideration then given to the protective measures that can be put in place to mitigate the assumed risk of harm. However, in cases where protective measures cannot be put in place, the court may need to enter into a fact finding exercise to resolve the factual disputes. This guidance tallies with the approach taken by the lower courts prior to Re E [2011].

The Supreme Court urges the Hague Conference to consider whether machinery could be put in place to ensure that protective orders, or undertakings, be recognised and enforced in the requesting state. A formal, internationally recognised process by which undertakings could be recognised and enforced would give far more assurance that the 'soft landing' will take place.

A court works on the assumption that the requesting state will be able to protect the defendant and child upon a return. Such an assumption is especially pertinent in cases to which BIIR applies due to article 11 of BIIR. However, despite these assumptions, careful consideration is still given to the proposed undertakings. Indeed, the issue of protective measures / undertakings has become increasingly important over the years given the high number of defendants pleading allegations of domestic violence. Currently though, there is a certain artifice to the undertakings process as breach of the undertakings can lead to contempt proceedings, but such a step often (if not always) is futile given the plaintiff is not in the jurisdiction.

It is interesting to note that the Supreme Court does not mention the possibility of an Annex II BIIR certificate being utilised in Hague Convention 1980 and BIIR cases so that the return order and undertakings could be recognised and enforced in the requesting state. It is therefore assumed that the Supreme Court took the view that this exequatur process was insufficient.

It remains to be seen whether the Hague Conference will take up the Supreme Court's request. Part I of the "Sixth Special Commission meeting to review the practical operation of the 1980 Hague Child Abduction Convention and the 1996 Protection of Children Convention" in The Hague has just concluded, but Part II has been tentatively set down for  January / February 2012. An international approach to protective measures is an excellent proposal, but it remains to be seen whether an international consensus will be possible. As things currently stand, the signatories to the Hague Convention 1980 do not take a uniform approach to the necessity or nature of protective measures.

5) The impact of the non-subject child
The Supreme Court did not interfere with the trial judge's determination that it was appropriate for the non-subject child to be joined to the proceedings. No further guidance was given on the joinder rule. Accordingly, the test to be applied remains the wide test set down in rule 6.5(e) of the Family Proceedings Rules 1991 (unaltered by the Family Procedure Rules 2010): see S v B (Abduction: Human Rights) [2005] 2 FLR 878 and W v W (Abduction: Joinder as Party) [2010] 1 FLR 1342.

Further, the Supreme Court makes clear that any interference with the non-subject child's rights under article 8 of ECHR 1950 is justified when balanced against the rights of others, in particular the rights of the subject children. Such an approach accords with the previous case law in this jurisdiction, such as S v B [2005].