HC/E/UKe 1068
UNITED KINGDOM - ENGLAND AND WALES
Supreme Court
Superior Appellate Court
NORWAY
UNITED KINGDOM - ENGLAND AND WALES
10 June 2011
Final
Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Procedural Matters
Appeal dismissed, return ordered subject to undertakings
The Court held that the first object of the Convention was to deter abductions. Secondly, where an abduction had occurred children were to be restored, as soon as possible, to their home country to allow any dispute to be determined there.
The left behind parent should not be inconvenienced by having to litigate abroad and the abductor should not be able to gain an unfair advantage by being able to litigate in the Contracting State of refuge. Factual disputes between the parties, whether about care, place of residence or domestic abuse, were likely to be resolved most appropriately in the country where the family had its home.
The Court noted the change in profile of abduction cases, from non-primary carer inspired, to being effected in the clear majority of cases by primary carers. On this matter it held (para. 8): "…it is one thing to say that the factual context has changed and another thing entirely to say that the change should result in any change to the interpretation and application of the Hague Convention."
The mother's grounds of appeal centred on human rights issues, which are detailed below. However, the third and final element of her challenge focused on the interpretation of Art. 13(1)(b), with it argued that the purposes of the Hague Convention were properly achieved if the latter exception was interpreted and applied in accordance with its own terms, without "additional glosses".
The Supreme Court accepted this submission, noting that by its very terms, the exception was of restricted application. The Court further affirmed that it shared the view expressed in the High Court of Australia in D.P. v. Commonwealth Central Authority [2001] HCA 39, (2001) 206 CLR 401 [INCADAT Reference: HC/E/AU 346], (paras. 9 & 44), that there was no need for the provision to be "narrowly construed".
The Court then gave further guidance on the Art. 13(1)(b) exception. It held that there was nothing to indicate that the applicable standard of proof was anything other than on the ordinary balance of probabilities. Trial courts must however pay regard to the summary nature of Hague proceedings and as such it would rarely be appropriate to hear oral evidence of Art. 13(1)(b) allegations.
As regards the risk to the child, it must be "grave", it was not enough that it be "real". The court noted that: "Although “grave” characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as “grave” while a higher level of risk might be required for other less serious forms of harm.”
Considering the three elements of the exception, the Court noted that "intolerable" was a strong word and an "intolerable situation" had to be given a subjective interpretation, from the perspective of the child concerned.
The Court added that whilst every child had to put up with a certain amount of discomfort and distress, there were certain things which it was not reasonable to expect a child to tolerate. Among these could be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of a parent.
The Court noted that Art. 13(1)(b) was forward looking and as such contemplated the situation that the child would face if returned. In this, regard had to be paid to the protective measures which might be put in place to ensure that the child did not face an intolerable situation.
The Court accepted that there was a tension between the inability of a trial court to resolve factual disputes between the parties and the risks a child would face if those allegations were true. It supported the submission that where allegations of domestic abuse were made, the trial court should first ask whether, if they were true, the child would face a grave risk of harm.
If so, the court should then ask how the child could be protected against the risk. The Supreme Court recognized that the appropriate protective measures and their efficacy would vary from case to case and from country to country. The Court recommended that the Hague Conference consider whether machinery could be put in place to secure the enforceability of protective measures in the State of habitual residence before the return of a child.
Applying this analysis to the facts of the case, the Supreme Court found that there was no reason to doubt that the risk to the mother's health was very real. Moreover, if the mother's mental health were to deteriorate then there would be a grave risk of psychological harm to the children. Nevertheless, the trial judge had considered that appropriate protective measures were in place to address these concerns. The Supreme Court held that it was not the task of an appellate court to disagree with the judge's assessment.
The Court considered first the inter-relationship of the Hague Convention with Art. 3(1) UNCRC - the best interests of the child shall be "a primary consideration" in all actions concerning children. It had been argued for the mother that the provision applied to return applications under the Hague Convention, just as it would to any other decision concerning a child.
The Court drew attention to the formulation of the provision and noted that there was a difference between best interests being "a primary consideration" and "the primary consideration". Both alternatives differed moreover from the best interests being "the paramount consideration".
The Court noted that simply because the best interests of the child were not expressly made a primary consideration in Convention, proceedings did not mean that they were not at the forefront of the exercise. The Court considered how the Convention sought to promote both the best interests of children and of the individual child in cases of abduction. It noted that the best interests of the individual child were served through certain rebuttable assumptions.
These included the assumption that the best interests of the child would be promoted by a prompt return to the State of habitual residence, which would moreover promote the best resolution of any dispute about the child's future.
The assumptions could be rebutted in a limited range of circumstances, as detailed in the exceptions to return, but each of the latter was inspired by the best interests of the child. The Court concluded that if both the Hague Convention and the Brussels IIa Regulation were faithfully applied, then a trial court would also be complying with Art. 3(1) UNCRC.
The second limb of the mother's case was that the ruling of the Grand Chamber of the ECrtHR in Neulinger [INCADAT Reference: HC/E/ 1323] supported the argument that the best interests of the child should be a primary consideration.
The Supreme Court agreed with Aikens L.J. in the Court of Appeal, that at para. 139 of the Neulinger ruling, the Grand Chamber had given the appearance of turning the swift, summary decision making process envisaged by the Hague Convention into a full-blown examination of the child's future in the requested state.
The Court noted that not only was this at odds with the Hague Convention's objectives, but under the jurisdictional principles of the Brussels II a Regulation it was impermissible in EU Member States.
The Court acknowledged that the President of the ECrtHR had, in an extrajudicial address, sought to defuse the concern generated by the Neulinger ruling and para. 139 in particular. The Court also accepted, as Aikens L.J. had done, that it was not for the Strasbourg court to decide what the Hague Convention required.
The Supreme Court held that the most that could be said was that: both Maumousseau [INCADAT Reference: HC/E/ 942] and Neulinger acknowledged that the guarantees in Art. 8 ECHR had to be interpreted and applied in the light of both the Hague Convention and the UNCRC; that each instrument was designed with the best interests of the child as a primary consideration; that in every Hague Convention case where the question was raised, the national court did not order return automatically and mechanically but examined the particular circumstances of the particular child in order to ascertain whether a return would be in accordance with the ECHR, but that was not the same as a full blown examination of the child's future, and that it was unlikely that if the Hague Convention was properly applied, whatever the outcome, there would be a violation of the Art. 8 rights of the child or either of the parents.
The Court recalled that the violation in Neulinger arose, not from the proper application of the Hague Convention, but from the effects of subsequent delay. The Court held that it was possible to imagine highly unusual cases in which a return might be in violation of the ECHR. In this it noted that a person could not be expelled to a country where he would face a real risk of torture or inhuman or degrading treatment or punishment or the flagrant denial of a fair trial.
The latter could, in theory, arise where the abducting parent would face such a risk and the child could not safely be returned without her. In such a case, it would be unlawful for the court, as a public authority, to act incompatibly with the ECHR rights. The Court affirmed: "But that is a far cry from the suggestion that article 8 "trumps" the Hague Convention: in virtually all cases, as the Strasbourg court has shown, they march hand in hand."
Status of Step-sibling
The Court acknowledged that the teenage step-sister would be torn between her concern for her mother and her sisters and her desire to lead her own life in the UK. Her Art. 8 rights were undoubtedly engaged, as well as the obligation under Art. 3(1) UNCRC to make her welfare a primary consideration. The Court held however that in the overall balance of all the Art. 8 and Art. 3(1) rights involved, the interference with the step-sister's rights could readily be justified in the interests of the rights of others, and in particular those of her sisters.
Party Status of Step-sister:
As regards the step-sister becoming a party to the proceedings, the Court noted that under the relevant procedural rules she had to have a "sufficient interest" in the welfare of the child. The Court accepted that she had an interest and was not prepared to interfere with the trial judge's assessment that this interest was "sufficient", given the mother's "depleted" mental state.
Author of the summary: Peter McEleavy
See for the decision of the Court of Appeal Eliasson v. Eliasson [2011] EWCA Civ 361 [INCADAT Reference HC/E/UK 1066]; see also Re S. (A Child) [2012] UKSC 10 [INCADAT Reference HC/E/UKe 1147] and S. v. C. (Abduction: Art.13 Defence: Procedure) [2011] EWCA Civ 1385; [2012] 1 F.C.R. 172 [INCADAT Reference HC/E/UKe 1148].
Courts in all Contracting States must inevitably make reference to and evaluate the aims of the Convention if they are to understand the purpose of the instrument, and so be guided in how its concepts should be interpreted and provisions applied.
The 1980 Hague Child Abduction Convention, explicitly and implicitly, embodies a range of aims and objectives, positive and negative, as it seeks to achieve a delicate balance between the competing interests of the central actors; the child, the left behind parent and the abducting parent, see for example the discussion in the decision of the Canadian Supreme Court: W.(V.) v. S.(D.), (1996) 2 SCR 108, (1996) 134 DLR 4th 481 [INCADAT Reference: HC/E/CA 17].
Article 1 identifies the core aims, namely that the Convention seeks:
"a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."
Further clarification, most notably to the primary purpose of achieving the return of children where their removal or retention has led to the breach of actually exercised rights of custody, is given in the Preamble.
Therein it is recorded that:
"the interests of children are of paramount importance in matters relating to their custody;
and that States signatory desire:
to protect children internationally from the harmful effects of their wrongful removal or retention;
to establish procedures to ensure their prompt return to the State of their habitual residence; and
to secure protection for rights of access."
The aim of return and the manner in which it should best be achieved is equally reinforced in subsequent Articles, notably in the duties required of Central Authorities (Arts 8-10) and in the requirement for judicial authorities to act expeditiously (Art. 11).
Article 13, along with Articles 12(2) and 20, which contain the exceptions to the summary return mechanism, indicate that the Convention embodies an additional aim, namely that in certain defined circumstances regard may be paid to the specific situation, including the best interests, of the individual child or even taking parent.
The Pérez-Vera Explanatory Report draws (at para. 19) attention to an implicit aim on which the Convention rests, namely that any debate on the merits of custody rights should take place before the competent authorities in the State where the child had his habitual residence prior to its removal, see for example:
Argentina
W., E. M. c. O., M. G., Supreme Court, June 14, 1995 [INCADAT Reference: HC/E/AR 362]
Finland
Supreme Court of Finland: KKO:2004:76 [INCADAT Reference: HC/E/FI 839]
France
CA Bordeaux, 19 janvier 2007, No de RG 06/002739 [INCADAT Reference: HC/E/FR 947]
Israel
T. v. M., 15 April 1992, transcript (Unofficial Translation), Supreme Court of Israel [INCADAT Reference: HC/E/IL 214]
Netherlands
X. (the mother) v. De directie Preventie, en namens Y. (the father) (14 April 2000, ELRO nr. AA 5524, Zaaksnr.R99/076HR) [INCADAT Reference: HC/E/NL 316]
Switzerland
5A.582/2007 Bundesgericht, II. Zivilabteilung, 4 décembre 2007 [INCADAT Reference: HC/E/CH 986]
United Kingdom - Scotland
N.J.C. v. N.P.C. [2008] CSIH 34, 2008 S.C. 571 [INCADAT Reference: HC/E/UKs 996]
United States of America
Lops v. Lops, 140 F.3d 927 (11th Cir. 1998) [INCADAT Reference: HC/E/USf 125]
The Pérez-Vera Report equally articulates the preventive dimension to the instrument's return aim (at paras. 17, 18, 25), a goal which was specifically highlighted during the ratification process of the Convention in the United States (see: Pub. Notice 957, 51 Fed. Reg. 10494, 10505 (1986)) and which has subsequently been relied upon in that Contracting State when applying the Convention, see:
Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008) [INCADAT Reference: HC/E/USf 741]
Applying the principle of equitable tolling where an abducted child had been concealed was held to be consistent with the purpose of the Convention to deter child abduction.
Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 578]
In contrast to other federal Courts of Appeals, the 11th Circuit was prepared to interpret a ne exeat right as including the right to determine a child's place of residence since the goal of the Hague Convention was to deter international abduction and the ne exeat right provided a parent with decision-making authority regarding the child's international relocation.
In other jurisdictions, deterrence has on occasion been raised as a relevant factor in the interpretation and application of the Convention, see for example:
Canada
J.E.A. v. C.L.M. (2002), 220 D.L.R. (4th) 577 (N.S.C.A.) [INCADAT Reference: HC/E/CA 754]
United Kingdom - England and Wales
Re A.Z. (A Minor) (Abduction: Acquiescence) [1993] 1 FLR 682 [INCADAT Reference: HC/E/UKe 50]
Aims and objectives may equally rise to prominence during the life of the instrument, such as the promotion of transfrontier contact, which it has been submitted will arise by virtue of a strict application of the Convention's summary return mechanism, see:
New Zealand
S. v. S. [1999] NZFLR 625 [INCADAT Reference: HC/E/NZ 296]
United Kingdom - England and Wales
Re R. (Child Abduction: Acquiescence) [1995] 1 FLR 716 [INCADAT Reference: HC/E/UKe 60]
There is no hierarchy between the different aims of the Convention (Pérez-Vera Explanatory Report, at para. 18). Judicial interpretation may therefore differ as between Contracting States as more or less emphasis is placed on particular objectives. Equally jurisprudence may evolve, whether internally or internationally.
In United Kingdom case law (England and Wales) a decision of that jurisdiction's then supreme jurisdiction, the House of Lords, led to a reappraisal of the Convention's aims and consequently a re-alignment in court practice as regards the exceptions:
Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]
Previously a desire to give effect to the primary goal of promoting return and thereby preventing an over-exploitation of the exceptions, had led to an additional test of exceptionality being added to the exceptions, see for example:
Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260 [INCADAT Reference: HC/E/UKe 901]
It was this test of exceptionality which was subsequently held to be unwarranted by the House of Lords in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]
- Fugitive Disentitlement Doctrine:
In United States Convention case law different approaches have been taken in respect of applicants who have or are alleged to have themselves breached court orders under the "fugitive disentitlement doctrine".
In Re Prevot, 59 F.3d 556 (6th Cir. 1995) [INCADAT Reference: HC/E/USf 150], the fugitive disentitlement doctrine was applied, the applicant father in the Convention application having left the United States to escape his criminal conviction and other responsibilities to the United States courts.
Walsh v. Walsh, No. 99-1747 (1st Cir. July 25, 2000) [INCADAT Reference: HC/E/USf 326]
In the instant case the father was a fugitive. Secondly, it was arguable there was some connection between his fugitive status and the petition. But the court found that the connection not to be strong enough to support the application of the doctrine. In any event, the court also held that applying the fugitive disentitlement doctrine would impose too severe a sanction in a case involving parental rights.
In March v. Levine, 249 F.3d 462 (6th Cir. 2001) [INCADAT Reference: HC/E/USf 386], the doctrine was not applied where the applicant was in breach of civil orders.
In the Canadian case Kovacs v. Kovacs (2002), 59 O.R. (3d) 671 (Sup. Ct.) [INCADAT Reference: HC/E/CA 760], the father's fugitive status was held to be a factor in there being a grave risk of harm facing the child.
Author: Peter McEleavy
Preparation of INCADAT commentary in progress.
To ensure that Convention cases are dealt with expeditiously, as is required by the Convention, courts in a number of jurisdictions have restricted the use of oral evidence, see:
Australia
Gazi v. Gazi (1993) FLC 92-341, 16 Fam LR 18; [INCADAT cite: HC/E/AU 277]
It should be noted however that more recently Australia's supreme jurisdiction, the High Court, has cautioned against the ‘inadequate, albeit prompt, disposition of return applications', rather a ‘thorough examination on adequate evidence of the issues' was required, see:
M.W. v. Director-General, Department of Community Services [2008] HCA 12, [INCADAT cite: HC/E/AU 988].
Canada
Katsigiannis v. Kottick-Katsigianni (2001), 55 O.R. (3d) 456 (C.A.); [INCADAT cite: HC/E/CA 758].
The Court of Appeal for Ontario held that if credibility was a serious issue, courts should consider hearing viva voce evidence of witnesses whose credibility is in issue.
China - Hong Kong
S. v. S. [1998] 2 HKC 316; [INCADAT cite: HC/E/HK 234];
United Kingdom - England & Wales
Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548; [INCADAT cite: HC/E/UKe 40];
Re W. (Abduction: Procedure) [1995] 1 FLR 878; [INCADAT cite: HC/E/UKe 37].
In the above case it was accepted that a situation where oral evidence should be allowed was where the affidavit evidence was in direct conflict.
Re W. (Abduction: Domestic Violence) [2004] EWCA Civ 1366, [2005] 1 FLR 727; [INCADAT cite: HC/E/UKe 771]
In the above case the Court of Appeal ruled that a trial judge could consider of his own motion to allow oral evidence where he conceived that oral evidence might be determinative of the case.
However, to warrant oral exploration of written evidence as to the existence of a grave risk of harm which was only embryonic on the written material, a judge must be satisfied that there was a realistic possibility that oral evidence would establish an Article 13(1) b) case.
Re F. (Abduction: Child's Wishes) [2007] EWCA Civ 468, [2007] 2 FLR 697; [INCADAT cite: HC/E/UKe 906]
Here the Court of Appeal affirmed that where the exception of acquiescence was alleged oral evidence was more commonly allowed because of the necessity to ascertain the applicant's subjective state of mind, as well as his communications in response to knowledge of the removal or retention.
Finland
Supreme Court of Finland: KKO:2004:76; [INCADAT cite: HC/E/FI 839].
Ireland
In the Matter of M. N. (A Child) [2008] IEHC 382; [INCADAT cite: HC/E/IE 992].
The trial judge noted that applications were heard on affidavit evidence only, except where the Court, in exceptional circumstances, directed or permitted oral evidence.
New Zealand
Secretary for Justice v. Abrahams, ex parte Brown; [INCADAT cite: HC/E/NZ 492];
Hall v. Hibbs [1995] NZFLR 762; [INCADAT cite: HC/E/NZ 248];
South Africa
Pennello v. Pennello [2003] 1 All SA 716; [INCADAT cite: HC/E/ZA 497];
Central Authority v. H. 2008 (1) SA 49 (SCA); [INCADAT cite: HC/E/ZA 900].
In the above case the Supreme Court of Appeal noted that even where the parties had not requested that oral evidence be admitted, it might be required where a finding on the issue of consent could not otherwise be reached.
United States of America
Ferraris v. Alexander, 125 Cal. App. 4th 1417 (Cal. App. 3d. Dist., 2005); [INCADAT cite: HC/E/USs 797]
The father argued that the trial court denied him a fair hearing because it determined disputed issues of fact without hearing oral evidence from the parties.
The Court of Appeal rejected this submission noting that nothing in the Hague Convention entitled the father to an evidentiary hearing with sworn witness testimony. Moreover, it noted that under California law declarations could be used in place of witness testimony in various situations.
The Court further ruled that the father could not question the propriety of the procedure used with regard to evidence on appeal because he did not object to the use of affidavits in evidence at trial.
For a consideration of the use of oral evidence in Convention proceedings see: Beaumont P.R. and McEleavy P.E. 'The Hague Convention on International Child Abduction' OUP, Oxford, 1999 at p. 257 et seq.
Under the rules applicable within the European Union for intra-EU abductions (Council Regulation (EC) No 2201/2003 (Brussels II a)) Convention applications are now subject to additional provisions, including the requirement that an applicant be heard before a non-return order is made [Article 11(5) Brussels II a Regulation], and, that the child be heard ‘during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity' [Article 11(2) Brussels II a Regulation].
The issue of how to respond when a taking parent who is a primary carer threatens not to accompany a child back to the State of habitual residence if a return order is made, is a controversial one.
There are examples from many Contracting States where courts have taken a very strict approach so that, other than in exceptional situations, the Article 13(1)(b) exception has not been upheld where the non-return argument has been raised, see:
Austria
4Ob1523/96, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 561]
Canada
M.G. v. R.F., 2002 R.J.Q. 2132 [INCADAT Reference: HC/E/CA 762]
N.P. v. A.B.P., 1999 R.D.F. 38 [INCADAT Reference: HC/E/CA 764]
In this case, a non-return order was made since the facts were exceptional. There had been a genuine threat to the mother, which had put her quite obviously and rightfully in fear for her safety if she returned to Israel. The mother was taken to Israel on false pretences, sold to the Russian Mafia and re-sold to the father who forced her into prostitution. She was locked in, beaten by the father, raped and threatened. The mother was genuinely in a state of fear and could not be expected to return to Israel. It would be wholly inappropriate to send the child back without his mother to a father who had been buying and selling women and running a prostitution business.
United Kingdom - England and Wales
C. v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 1 WLR 654 [INCADAT Reference: HC/E/UKe 34]
Re C. (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 [INCADAT Reference: HC/E/UKe 269]
However, in a more recent English Court of Appeal judgment, the C. v. C. approach has been refined:
Re S. (A Child) (Abduction: Grave Risk of Harm) [2002] 3 FCR 43, [2002] EWCA Civ 908 [INCADAT Reference: HC/E/UKe 469]
In this case, it was ruled that a mother's refusal to return was capable of amounting to a defence because the refusal was not an act of unreasonableness, but came about as a result of an illness she was suffering from. It may be noted, however, that a return order was nevertheless still made. In this context reference may also be made to the decisions of the United Kingdom Supreme Court in Re E. (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 A.C. 144 [INCADAT Reference: HC/E/UKe 1068] and Re S. (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 A.C. 257 [INCADAT Reference: HC/E/UKe 1147], in which it was accepted that the anxieties of a respondent mother about return, which were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child's situation would become intolerable, could in principle meet the threshold of the Article 13(1)(b) exception.
Germany
Oberlandesgericht Dresden, 10 UF 753/01, 21 January 2002 [INCADAT Reference: HC/E/DE 486]
Oberlandesgericht Köln, 21 UF 70/01, 12 April 2001 [INCADAT: HC/E/DE 491]
Previously a much more liberal interpretation had been adopted:
Oberlandesgericht Stuttgart, 17 UF 260/98, 25 November 1998 [INCADAT Reference: HC/E/DE 323]
Switzerland
5P_71/2003/min, II. Zivilabteilung, arrêt du TF du 27 mars 2003 [INCADAT Reference: HC/E/CH 788]
5P_65/2002/bnm, II. Zivilabteilung, arrêt du TF du 11 avril 2002 [INCADAT Reference: HC/E/CH 789]
5P_367/2005/ast, II. Zivilabteilung, arrêt du TF du 15 novembre 2005 [INCADAT Reference: HC/E/CH 841]
5A_285/2007/frs, IIe Cour de droit civil, arrêt du TF du 16 août 2007 [INCADAT Reference: HC/E/CH 955]
5A_479/2012, IIe Cour de droit civil, arrêt du TF du 13 juillet 2012 [INCADAT Reference: HC/E/CH 1179]
New Zealand
K.S. v. L.S. [2003] 3 NZLR 837 [INCADAT Reference: HC/E/NZ 770]
United Kingdom - Scotland
McCarthy v. McCarthy [1994] SLT 743 [INCADAT Reference: HC/E/UKs 26]
United States of America
Panazatou v. Pantazatos, No. FA 96071351S (Conn. Super. Ct., 1997) [INCADAT Reference: HC/E/USs 97]
In other Contracting States, the approach taken with regard to non-return arguments has varied:
Australia
In Australia, early Convention case law exhibited a very strict approach adopted with regard to non-return arguments, see:
Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT Reference: HC/E/AU 294]
Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT Reference: HC/E/AU 293]
In State Central Authority v. Ardito, 20 October 1997 [INCADAT Reference: HC/E/AU 283], the Family Court of Australia at Melbourne did find the grave risk of harm exception to be established where the mother would not return, but in this case the mother had been denied entry into the United States of America, the child's State of habitual residence.
Following the judgment of the High Court of Australia (the highest court in the Australian judicial system) in the joint appeals DP v. Commonwealth Central Authority; J.L.M. v. Director-General, NSW Department of Community Services [2001] HCA 39, (2001) 180 ALR 402 [INCADAT Reference HC/E/AU 346, 347], greater attention has been focused on the post-return situation facing abducted children.
In the context of a primary-carer taking parent refusing to return to the child's State of habitual residence see: Director General, Department of Families v. RSP. [2003] FamCA 623 [INCADAT Reference HC/E/AU 544].
France
In French case law, a permissive approach to Article 13(1)(b) has been replaced with a much more restrictive interpretation. For examples of the initial approach, see:
Cass. Civ 1ère 12. 7. 1994, S. c. S.. See Rev. Crit. 84 (1995), p. 96 note H. Muir Watt; JCP 1996 IV 64 note Bosse-Platière, Defrénois 1995, art. 36024, note J. Massip [INCADAT Reference: HC/E/FR 103]
Cass. Civ 1ère, 22 juin 1999, No de RG 98-17902 [INCADAT Reference: HC/E/FR 498]
And for examples of the stricter interpretation, see:
Cass Civ 1ère, 25 janvier 2005, No de RG 02-17411 [INCADAT Reference: HC/E/FR 708]
CA Agen, 1 décembre 2011, No de RG 11/01437 [INCADAT Reference HC/E/FR 1172]
Israel
In Israeli case law there are contrasting examples of the judicial response to non-return arguments:
Civil Appeal 4391/96 Ro v. Ro [INCADAT Reference: HC/E/IL 832]
in contrast with:
Family Appeal 621/04 D.Y v. D.R [INCADAT Reference: HC/E/IL 833]
Poland
Decision of the Supreme Court, 7 October 1998, I CKN 745/98 [INCADAT Reference: HC/E/PL 700]
The Supreme Court noted that it would not be in the child's best interests if she were deprived of her mother's care, were the latter to choose to remain in Poland. However, it equally affirmed that if the child were to stay in Poland it would not be in her interests to be deprived of the care of her father. For these reasons, the Court concluded that it could not be assumed that ordering the return of the child would place her in an intolerable situation.
Decision of the Supreme Court, 1 December 1999, I CKN 992/99 [INCADAT Reference: HC/E/PL 701]
The Supreme Court specified that the frequently used argument of the child's potential separation from the taking parent, did not, in principle, justify the application of the exception. It held that where there were no objective obstacles to the return of a taking parent, then it could be assumed that the taking parent considered his own interest to be more important than those of the child.
The Court added that a taking parent's fear of being held criminally liable was not an objective obstacle to return, as the taking parent should have been aware of the consequences of his actions. The situation with regard to infants was however more complicated. The Court held that the special bond between mother and baby only made their separation possible in exceptional cases, and this was so even if there were no objective obstacles to the mother's return to the State of habitual residence. The Court held that where the mother of an infant refused to return, whatever the reason, then the return order should be refused on the basis of Article 13(1)(b). On the facts, return was ordered.
Uruguay
Solicitud conforme al Convenio de La Haya sobre los Aspectos Civiles de la Sustracción Internacional de Menores - Casación, IUE 9999-68/2010 [INCADAT Reference: HC/E/UY 1185]
European Court of Human Rights (ECrtHR)
There are decisions of the ECrtHR which have endorsed a strict approach with regard to the compatibility of Hague Convention exceptions and the European Convention on Human Rights (ECHR). Some of these cases have considered arguments relevant to the issue of grave risk of harm, including where an abductor has indicated an unwillingness to accompany the returning child, see:
Ilker Ensar Uyanık c. Turquie (Application No 60328/09) [INCADAT Reference: HC/E/ 1169]
In this case, the ECrtHR upheld a challenge by the left-behind father that the refusal of the Turkish courts to return his child led to a breach of Article 8 of the ECHR. The ECrtHR stated that whilst very young age was a criterion to be taken into account to determine the child's interest in an abduction case, it could not be considered by itself a sufficient ground, in relation to the requirements of the Hague Convention, to justify dismissal of a return application.
Recourse has been had to expert evidence to assist in ascertaining the potential consequences of the child being separated from the taking parent
Maumousseau and Washington v. France (Application No 39388/05) of 6 December 2007 [INCADAT Reference: HC/E/ 942]
Lipowsky and McCormack v. Germany (Application No 26755/10) of 18 January 2011 [INCADAT Reference: HC/E/ 1201]
MR and LR v. Estonia (Application No 13420/12) of 15 May 2012 [INCADAT Reference: HC/E/ 1177]
However, it must equally be noted that since the Grand Chamber ruling in Neulinger and Shuruk v. Switzerland, there are examples of a less strict approach being followed. The latter ruling had emphasised the best interests of the individual abducted child in the context of an application for return and the ascertainment of whether the domestic courts had conducted an in-depth examination of the entire family situation as well as a balanced and reasonable assessment of the respective interests of each person, see:
Neulinger and Shuruk v. Switzerland (Application No 41615/07), Grand Chamber, of 6 July 2010 [INCADAT Reference: HC/E/ 1323]
X. v. Latvia (Application No 27853/09) of 13 December 2011 [INCADAT Reference: HC/E/ 1146]; and Grand Chamber ruling X. v. Latvia (Application No 27853/09), Grand Chamber [INCADAT Reference: HC/E/ 1234]
B. v. Belgium (Application No 4320/11) of 10 July 2012 [INCADAT Reference: HC/E/ 1171]
In this case, a majority found that the return of a child to the United States of America would lead to a breach of Article 8 of the ECHR. The decision-making process of the Belgian Appellate Court as regards Article 13(1)(b) was held not to have met the procedural requirements inherent in Article 8 of the ECHR. The two dissenting judges noted, however, that the danger referred to in Article 13 should not consist only of the separation of the child from the taking parent.
(Author: Peter McEleavy, April 2013)
Preparation of INCADAT commentary in progress.
Preparation of INCADAT commentary in progress.