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The Supreme Court's judgment in In the Matter of S (A Child) - An Analysis

Jennifer Perrins of 1 King's Bench Walk analyses the Supreme Court's judgment in In the Matter of S (A Child)

Jennifer Perrins, barrister, 1 King's Bench Walk

Jennifer Perrins
, barrister, 1 King's Bench Walk

Prior to the case of In Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144, neither the House of Lords nor the Supreme Court had ever heard an appeal in which the interpretation of article 13b of the Convention on the Civil Aspects of International Child Abduction was directly in issue. 

Having waited more than 30 years to hear such a case, the Supreme Court has now had to consider article 13b twice in the space of nine months, due to the appeal to the Supreme Court in the case of In the matter of S (A Child) [2012] UKSC 10.  Indeed, Lord Wilson, in delivering the judgment of the court, observed that 'the court did not expect so soon to entertain a second appeal about the effect of article 13b'.

This article will examine the decision of the Supreme Court, and will summarise the key points to note from the judgment. 

The facts and the hearings below
A full discussion of the judgment of the Court of Appeal can be found in an earlier article (S v C: Re E Revisited), but a summary of the facts and of the decision of the Court of Appeal is as follows. 

The case concerned an Australian father, and a mother who was of British origin, but had dual Australian nationality.  The parties' only child (referred to as 'W' in the judgment of the Supreme Court), was born in November 2009.  The father had been a heroin addict in the past, and by the time of the parties' separation he had relapsed into drug use, and he abused alcohol as well.  The mother alleged that she had been a victim of domestic violence, and she also had long-term mental health problems, having suffered from anxiety and depression for many years.  She was being treated with medication, and was undergoing psychotherapy, at the time of the relationship breakdown. 

The parties separated in January 2011, at which time the mother obtained an 'apprehended domestic violence order' in the Australian courts.  The mother then wrongfully removed the child from Australia to England in February 2011, and the father issued his application for return shortly thereafter. 

The mother asserted an Article 13b 'defence' based upon (mostly) contested allegations about the behaviour of the father, and the likely effect upon her mental health of being forced to return to Australia. 

At the initial hearing in June, directions had been made that 'drew inspiration' from paragraph 36 of In Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144.  The directions provided for a two-stage approach: the court would first consider whether the allegations of the mother 'taken at their highest' came within Article 13b, having regard to proposed undertakings / protective measures; and then, depending on the answer to that question, the court would either dispose of the matter summarily or make directions 'to enable a further hearing with such oral evidence as the court considers appropriate to take place'. 

At the two day hearing in July, Charles J followed these directions, and adjourned the case part-heard to allow further evidence about protective measures.  The judge, in part, relied upon Re E to support his view that the court had to investigate the issue of protective measures more fully.  The parties jointly instructed a consultant psychiatrist to report upon the mother's mental health in the interim. 

The expert reported that the mother's mental health was currently 'stable and healthy', but that a return to Australia would be likely to cause a 'significant and severe' psychological impact.  The expert apparently did not address what protective measures would be necessary or appropriate, and neither party called the expert to give oral evidence at the adjourned hearing (NB: the Supreme Court was of the view that, in fact, the expert had addressed the question of protective measures, although it is fair to say that this was in quite an obscure way [paragraph 26]; and the expert seems only to have referred to psychotherapy / counselling for the parties, and not to have dealt with practical protective measures). 

Charles J accepted that the various undertakings offered by the father would provide the mother and child with 'a home and a full and appropriate package of support' in Australia.  However, he concluded that the situation upon return would nevertheless give rise to an article 13b risk.  In addressing the second limb of the earlier directions, he held that this would be so even if the allegations made by the mother were not true. He exercised his discretion not to return the child.

The Court of Appeal accepted the three arguments advanced on behalf of the father on appeal.  First and foremost, the Court of Appeal said that Re E 'is a restatement and not an evolution of the law of the Convention'.  Secondly, Charles J's decision that the protective measures would be inadequate was found to be disproportionate (largely because of the lack of expert evidence, and also because the return would be to a jurisdiction in which the English court could have confidence).  The Court of Appeal did not accept, as asserted by the mother, that the court should not try to 'weigh objective reality of asserted anxiety', in the context of the mother's alleged subjective perception of, and likely reaction to, a forced return.  The court still had to ask the 'crucial question', which the Court of Appeal said was whether 'these asserted risks, insecurities and anxieties [were] realistically and reasonably held in the face of the protective package, the extent of which would commonly be defined not by the applicant but by the court'.  Thirdly, the Court of Appeal was 'troubled' by the Judge's view that the stress of the mother's anticipated relocation application upon return was a factor elevating the Article 13b risk.  The Court of Appeal therefore allowed the appeal and ordered the return of the child. 

The Court of Appeal also commented that the form of directions made at the outset of the case should not be used in future, and that paragraph 36 of the judgment in In Re E should not have been interpreted as requiring such an approach.

The decision of the Supreme Court
The Supreme Court unanimously allowed the mother's appeal, and restored the order of Charles J.  Lord Wilson delivered the judgment of the court.  The Court of Appeal came under some fairly heavy criticism; in particular, the Supreme Court said that the mother's case had not been analysed in sufficient detail, and that the nature and effect of the judgment in In Re E had been misinterpreted. 

The following points emerge from the judgment of the Supreme Court.  These will be examined in turn:

i. In theory, it would be possible for an article 13b 'defence' to succeed purely on the basis of the subjective anxieties of the abducting parent, even if their anxieties were not based upon objective reality.

In the Court of Appeal, the argument about 'subjective' and 'objective' perception of risk had been a key issue.  Thorpe LJ had been robust in his treatment of the mother's argument that objective analysis of protective measures was almost irrelevant, because the relevant factor was the mother's mental health, and her likely subjective reaction to a return to Australia.  Thorpe LJ said that no case had been cited showing that 'the effect of a respondent's clearly subjective perception of risks on return leading to an intolerable situation for the child is a permissible ground for refusing a return'.  The case cited on behalf of the mother, Re G (Abduction: Psychological Harm) [1995] 1 FLR 64, where the abducting parent's likely reaction to a return would have been to become 'psychotic', was distinguished, because in Re G there had been expert evidence that was accepted by the court.  Thorpe LJ said at paragraph 43 of the judgment that the court must still ask the 'crucial question', as set out above. 

The Supreme Court had a different slant on the argument about 'subjective' and 'objective' risk on the facts of this case, because a full analysis of the evidence at first instance showed that a significant number of the mother's allegations were either admitted by the father, or 'could not realistically be denied' in the face of the evidence (this was largely based upon the emails and text messages produced by the mother).  Despite all the discussion of 'subjective' and 'objective' perception, the mother in this case was not simply relying on her 'subjective perception' of events – at first instance, Charles J had concluded that the mother had made out 'a good prima facie case that she was the victim of significant abuse at the hands of the father'.  The Supreme Court therefore thought that it had perhaps been unnecessary for Charles J to have gone on to address the mother's 'subjective perceptions', because he had already found that, in fact, they were 'based on objective reality'. 

However, the Supreme Court made abundantly clear that paragraph 34 of In Re E does provide authority for the proposition that the source of an article 13b risk is irrelevant, even if the risk arises only from the subjective perceptions of the abductor (paragraph 34 of In Re E recorded counsel for the father's concession in this regard; the example given was where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child).  The Supreme Court disapproved of the Court of Appeal's description of the 'crucial question' for the court.  Instead, the Supreme Court described what it called the 'critical question' to ask in any such case, which is [paragraph 34]: 

'what will happen if, with the mother, the child is returned.  If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned.  It matters not whether the mother's anxieties will be reasonable or unreasonable.  The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned.' 

As was discussed in the earlier article on the Court of Appeal judgment, in most cases, it will be difficult entirely to separate 'objective' and 'subjective' assessment of risk, because usually a party's perception of risk will be interwoven with the factual matrix – as was the case in In the Matter of S.  However, it cannot now be in any doubt that in an appropriate case, an article 13b 'defence' could succeed even if there were absolutely no objective basis for the abductor's anxieties about return.

ii. In Re E was not simply a 'restatement' of the law, but was intended to remove judicial 'gloss' from the interpretation of article 13b.

The Supreme Court once again expressed concern about the effect of that worryingly prevalent substance: 'judicial gloss'.  Lord Wilson said that the Court of Appeal had approached what it had called 'the crucial question' in terms which 'arguably represented not only a fresh gloss on the meaning of the article but one which happened to run directly counter to this court's analysis of its meaning in In Re E'

The Court of Appeal had been at pains to point out that In Re E was simply a 'restatement', and not an 'evolution', of the law of the Convention.  However, the Supreme Court corrected this misunderstanding on the part of the Court of Appeal.  Lord Wilson [at paragraph 31] said that In Re E was 'primarily an exercise in the removal from [article 13b] of disfiguring excrescence' (i.e. 'judicial gloss'). 

As was the case after the judgment in In Re E, there is still no guidance on precisely which of our earlier authorities were guilty of adding this impermissible substance.  The Supreme Court once again effectively exhorts us to go 'back to basics' – to follow the plain words of the Convention.  However, this principle is easier to state than to apply.  Surely there has to be some legitimate judicial explanation of, and comment upon, the words of the Convention, in order to provide practitioners with guidance on interpretation?  This is still going to be a difficult line to tread, and we have probably not seen the end of 'judicial gloss'. 

iii. Paragraph 36 of In Re E should not be used as the basis for directions requiring a separate preliminary hearing, but should be followed as part of the court's overall assessment of an article 13b 'defence'.

Although the Supreme Court seemed not to agree that Thorpe LJ needed to disapprove of the case management directions in such 'arrestingly vehement terms', it was confirmed that such directions should be avoided.  The Supreme Court took this view first of all because the approach described in paragraph 36 of In Re E should simply be part of the court's overall analysis of an article 13b 'defence', rather than a separate preliminary issue; and secondly because the approach described in that paragraph relates to 'disputed' issues, but in S v C it became clear after the directions were given that not all the material in support of the mother's defence was actually in dispute. 

iv. The appellate courts must be vigilant not to substitute their own discretionary decisions for those of the courts at first instance.

The Supreme Court did not agree that there had been any justification for the Court of Appeal to interfere in the discretionary exercise performed by Charles J.  Reading between the lines, perhaps the members of the Supreme Court disagreed that this was a case for a non-return order; however, the crucial principle that first instance decisions should not be lightly overturned was reiterated.  The Supreme Court cited the case of In Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80 as a reminder of this principle.  

v. It is not appropriate to perform an 'in-depth examination' of all the welfare factors in a Hague Convention case, and any suggestion by the ECtHR that such an approach is required by Article 8 ECHR is incorrect.

Despite all the debate generated by the decision of the European Court of Human Rights in the case of Neulinger, despite the extra-judicial comments of the President of the ECtHR explaining that decision, and despite the Supreme Court's very clear guidance in In Re E, the ECtHR has again recently suggested that Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms requires the courts in a Hague Convention case 'to conduct 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 [to make] a balanced and reasonable assessment of the respective interests of each person'.  Reunite had drawn the Supreme Court's attention to the case of X v Latvia (Application No.27853/09), a judgment dated 13 December 2011.  The Supreme Court therefore took the opportunity once more to stress that it would be 'entirely inappropriate' to undertake in a Hague Convention case the kind of 'in-depth examination' described by the ECtHR; and that neither the Hague Convention nor Article 8 ECHR requires this approach. 

It is possible to read In the Matter of S as an invitation to abducting parents to raise their own 'subjective anxieties' in support of an article 13b 'defence' on a much more frequent basis.  However, this case really should not have any more of an impact than In Re E, because the Supreme Court has simply reiterated what had previously been said in that case.  As set out above, perhaps the key issue is the same as it was following In Re E – how to interpret the words of the Convention without trespassing into impermissible 'gloss'.