Marilyn Stowe Blog

An update on child abduction and the Hague Convention. By guest blogger Jennifer Hollyer

What happens when parents separate abroad and one of them wants to return to England and bring the children with them? The prospect of desperate parents resorting to child abduction immediately throws up a raft of complex emotional and legal problems. On this blog we have heard from many mothers who are literally “stuck” in foreign countries, unable to leave with their children unless they are prepared to do so without the other parent’s consent or permission of the court.

The stakes are too high for most. There are risks of a criminal prosecution and the English court most likely ordering a return of the children back to the foreign country. These risks, viewed harshly in the cold light of day, are too much of a gamble for most parents. They aren’t prepared to break the law, and potentially lose custody of their children and go to prison. So instead they obey it at considerable personal cost. For many such parents the consequences of relationship breakdown in a faraway country wrecks their lives. So, some desperate parents decide to take a chance and bring their children back to England. They are prepared to try and fight in England to stay in their home country with their children. The chances are very high that they will be returned.

There have been a couple of recent decisions on this topic, so I asked Jenny Hollyer of our Children’s Department to firstly consider an important decision of our Supreme Court which came out last week. Next week she will be looking at A v T [2011] FD11P02388, a recent decision of Mr Justice Baker where the defence to a request for return of the child was acquiescence.

Under The Hague Convention on the Civil Aspects of International Child Abduction 1980 (“The Hague Convention”) the removal or retention of a child from a convention country would be considered child abduction and therefore breaking the law if it breaches the rights of custody attributed to another person, institution or body under the law of the state where the child lived before the removal (Art 3 of the Hague Convention).

So in practical terms, what happens if that parent leaves anyway and attempts to retain the children in England? As long as a full year has not elapsed since the wrongful removal or retention, then the English court will most likely order the return of the child to their country of habitual residence (Art 12 of the Hague Convention).

Is it abduction if there is risk of harm to the child?

It is possible to prevent an order being made to return children, but it only applies under certain restricted circumstances. The person or body who has removed the child and/or retained the child must prove either that:

• Art 13(a) – The other person, institution or body was not actually exercising their custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in  the removal or retention; or
• Art 13 (b) – There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

An order may also not be made where a child objects to being returned and is old enough and mature enough for the court to consider and take account their views.

( I am going to consider Art 13(a) in greater detail in Part Two of this post, which will deal with Consent and Acquiescence and be published next week.)

Ensuring that the child’s protection is the main priority

Where cases involve two member states of the European Union then European Council Regulation EC No 2201/2003, usually now as Brussels II revised, must be considered. This strengthens the fact that the best interests of the child are to be a primary consideration in these cases, and that this regulation will take priority over The Hague Convention. Article 11.4 of this regulation states that a court cannot refuse to return a child on the basis of Article 13 (b) (as above) of The Hague Convention “if it is established that adequate arrangements have been made to secure the protection of the child after his or her return”.

Eighty-seven countries, including England and Wales, have signed up to the Hague Convention and have incorporated it into their own laws. If either the resident country or the new country is not party to the convention, other regulations will apply depending on which countries are involved.

The UK Supreme Court last week released its judgment in The Matter of S (A Child) [2012] UKSC 10 on this subject. In particular, it clarifies and reaffirms the principles stated by the same court in the previous case of Re E (Children) (International Abduction) [2011] UKSC 27. So what does this mean for the international movement of children and The Hague Convention in practice?

“Expose them to psychological harm”

In the case of Re E (Children) (International Abduction) [2011] UKSC 27, the mother, father and children resided in Norway. Upon separation of the parents, the mother removed the children from Norway and brought them to England without the father’s consent. The children, at the time, had a half-sister already living in England.

Suffice to say, the father was not happy and duly issued an application for the return of the children. In her defence, the mother pleaded that there was a grave risk that the return of the children would expose them to psychological harm and place them in an intolerable situation under Article 13 (b) of The Hague Convention because their primary carer would suffer significantly.

The mother claimed that she had been suffering long-term serious psychological abuse from the father and he also exhibited an angry approach towards the children. The father was also claimed to be physically violent towards other people and animals, and the mother was frightened that if he was violent to her he could kill her.

The mother was diagnosed as suffering from an adjustment disorder and the doctor considered that this would be made significantly worse if she had to return to Norway without the necessary support.

Upon liaising with a judge in Norway, it was discovered that the necessary support that the mother would need in Norway was available to her along with binding promises to the court by the father to ensure the safety of the mother and the children. In particular he undertook to:

• Not use or threaten violence to, or harass or pester or molest the mother, or contact her save through lawyers
• Not remove or seek to remove the children from her care pending an order of the Norwegian court or by agreement
• Vacate the matrimonial home pending an order of the court in the child custody case and not go within 500 metres of it without the courts permission
• Pay all household bills and child maintenance.

It was on this basis that the judge believed that the mother and children would be protected if they were sent back to Norway. He therefore rejected the mother’s defence and stated that it would overwhelmingly be in the children’s best interests for them to return to Norway and for their futures to be decided there.

The mother and her half-sister appealed on the basis that the court had not applied earlier case law properly. They argued that the court had failed to treat the children’s best interests as a primary consideration as stated under the United Nations Convention on the Rights of the Child and Brussels II revised. They insisted that a new approach to Hague Convention cases be adopted, in line with the European Court of Human Rights decision in an earlier case that to return the children would be in breach of their human right to family life.

The Court of appeal refused the appeal but allowed an appeal to the UK Supreme Court. The Supreme Court handed down its judgment on 10 June 2011, it made the following key points in international child abduction cases clear:

• That The Hague Convention and other European children regulations regarding the international movement of children were formulated for the benefit of children generally and for the intention of serving the best interests of the individual child. These regulations were not for the benefit of the parents in the case.
• That the children’s best interests were to be reunited with their parents as soon as possible so that one does not gain an unfair advantage over the other through the passage of time, and to be raised in an environment where there is no risk of harm.
• That the court was to look at the particular circumstances of the particular child without conducting a full-scale investigation into the child’s future.
• That if the court deals with the above three points fairly, then it is extremely unlikely that any human rights involving family life will be breached. The reason that the European Court of Human Rights found a return of children in breach of the right to family life was because there was a delay long enough and to return the children after such a period of time would not have been in their best interests.
• That Article 13 (b) did not need to be construed any more narrowly than the wording provided. The risk of harm must be grave and the harm must involve something it was not reasonable to expect a child to tolerate. This wording is plain. Grave refers to the risk not the harm.
• It was made clear that Article 13 (b) could be founded upon the anxieties of a parent about a return based upon subjective risk to her, that was of such intensity is was likely to strike at the foundations of the parenting of that child, to the point where the child’s situation would become intolerable.
• That allegations under the Article 13 (b) defence would not be examined orally in court unless it was the appropriate thing to do. The court should first consider if they find the allegations to be true and then consider how the child could be protected against any risk presenting from these allegations. In considering this, it should take into account the child’s immediate future and the ongoing need for protection. The court should consider what is available to the other state’s court to protect the returning parent and children.

The UK Supreme Court refused the mother’s appeal and ordered that the children be returned to their home country.

A British mother and an Australian father

The aforementioned case of The Matter of S (A Child) [2012] UKSC 10 involved a British mother and an Australian father. The mother also had Australian citizenship. The parties’ relationship deteriorated to such an extent that the mother alleged her life with the father in Sydney had become so intolerable that she could not remain. The father abused alcohol and drugs and was experiencing serious financial difficulties, which fuelled the gradual breakdown in the relationship.

On 19 January 2011, the mother stated that she found the father injecting himself with heroin in their garage. She called the police and told the father to leave their flat and not come back. Various text messages were provided to the court that showed the father, among other things, offering to attend self-help groups, pleading for another chance and forgiveness and also threatening to commit suicide.

In addition the mother alleged serious violence from the father to her, including a threat to kill her. The father also cross alleged that the mother was violent during the relationship.

The Australian police obtained an Apprehended Violence Order for the mother and served it on the father.

On 2 February 2011, the mother returned to England with their child. The father did not provide his consent for the removal of the child from Australia and therefore, the mother breached the father’s rights of custody.

The father issued Hague proceedings and the case came before Mr Justice Charles in the High Court. In defending the wrongful removal, the mother relied on Article 13 (b), putting forward various allegations against the father.

In 2007, the mother, had been prescribed anti-depressants because she had symptoms of anxiety and depression relating to the separation from her first husband. The mother stopped taking this medication in 2009 when she fell pregnant. She had been consulting her doctor about this ever since, and following the move to England, the doctor provided an assessment that if the mother was required to return to Australia her mental health would suffer substantially.

The mother had also been having extensive psychotherapy in Australia, which continued by telephone after her move. It was stated by her psychologist that the mother had suffered an underlying and chronic anxiety condition since childhood. She concluded within evidence provided to the court that the mother was “subject to panic attacks; that she had seen the mother unravel, that the mother’s affect of fear overwhelmed her; that fear of the father’s mental instability, added to the stress of isolation in Australia from her family, might well undermine the mother’s capacity to hold herself together; that her likely clinical depression could diminish her secure attachment to [the child]; and that (so Ms MacKenzie said) the father was capable of being impulsive and dangerous towards her, the mother would be in a constant state of hyper vigilance, this being the very condition which would trigger an anxiety state”. Finally she stated that “should [the mother] be forced to return to Australia, I am concerned her anxiety will become crippling”.

The father provided the following undertakings as a means to protecting the mother and therefore the child in the event of their return to Australia:

• That he would pay for their flights home and rent for two months
• That he would contribute to further rent by way of periodical payments
• That he will comply with the terms of the Apprehended Violence Order
• That he would not remove the child from the mother’s care save for the purpose of agreed contact
• That he would not approach within 250 metres of their accommodation save for any agreement surrounding contact with the child
• That he would not seek to have contact with the mother except for through lawyers.

A jointly instructed psychiatrist in the case concluded that the mother had suffered battered woman’s syndrome followed by an acute stress reaction. However, her symptoms of acute stress seemed to have resolved themselves following the move to England. The psychiatrist concluded that: “the likely psychiatric and psychological impact on [the mother] of a return to Australia is significant and severe…The most protective measure would be psychological intervention for the father”.

Following the guidance presented in Re E Mr Justice Charles held that the protective measures offered by the father were not enough to prevent grave risk to the children upon their return. He found that the defence had therefore been met and ordered that the child should not be returned to Australia.

The Court of Appeal, however, allowed the appeal and ordered that the child was to be returned. It seems that the Court of Appeal did not give sufficient weight to all of the circumstances and therefore gave inadequate address of the mother’s case.  Instead they treated the mother’s defence as her own perception of what might happen and what the risks might be. The Court of Appeal also believed that Mr Justice Charles’ understanding of Re E was to “raise the bar” against applicants seeking a return order by allowing subjective perceptions of risks and beliefs of the consequences of returning the child. This it seems was making the defence under Article 13 (b) more restrictive than it actually should be.

The UK Supreme Court handed down its Judgment on 14 March 2012 and did not agree with the Court of Appeal that Mr Justice Charles had “raised the bar” and in fact agreed with his interpretation and application of Re E. They stated that: “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”.

The Supreme Court reversed the Court of Appeal’s decision and upheld the High Court’s, allowing the mother and child to stay in this country.

This judgment provides further clarification for children practitioners regarding the process that the court will go through to make a decision as to whether children should be returned after a wrongful removal.

Following the judgment Reunite, a UK charity specialising in the movement of children across international borders, acted as an intervener in this case and commented on the outcome. The charity’s acting director, Alison Shalaby , said that: “We welcome this judgment as reaffirming the clear principles stated in the helpful and important previous decision of the court in Re E. Reunite continues to believe that the 1980 Hague Convention is a remarkably effective international instrument regulating the international movement of children and, where appropriate, preventing or remedying child abduction.”

Seeking the right advice

If you live in a country which is a signatory to The Hague Convention and you are considering moving to England, you must obtain the consent of the other parent who has parental responsibility or rights of custody. It is also more helpful to obtain the consent in writing. If you do not do so and remove the child and/or retain the child in England, it will be considered child abduction and unless there is a valid defence, the child will be returned and you will have to face serious legal consequences.

If, on the other hand, your child has been removed to England without your consent and you live in a Hague Convention country then you should immediately contact a lawyer for advice. Your lawyer is likely to advise that contact needs to be made with your country’s Central Authority who deals with Child Abduction. That Central Authority will then contact the Central Authority in England and arrangements will be made for proceedings to be issued. Time is of the essence and any delay could be detrimental to your case.

If anyone believes that there is a risk of one parent abducting a child then seek legal advice immediately to see what measures can be put in place to stop the child leaving the country.

 A University of Sheffield graduate in European, International and Comparative Law, Jennifer spent a period of time studying Finnish law at the University of Helsinki in Finland while completing her degree. She joined Stowe Family Law in July 2008 as a trainee solicitor. Now qualified, Jennifer plays a vital role in the children law and domestic violence department, assisting Head of Department Stephen Hopwood.