UNITED KINGDOM - SCOTLAND
Extra Division, Inner House, Court of Session
Superior Appellate Court
Lady Wise, Lord Tyre, Lord Malcolm
UNITED STATES OF AMERICA
UNITED KINGDOM - SCOTLAND
17 March 2023
Issues Relating to Return | Grave Risk - Art. 13(1)(b)
Appeal allowed, return refused
Illinois Marriage and Dissolution of Marriage Act; Illinois Domestic Violence Act of 1986
C v. C  1 WLR 654 & 664; In re E  UKSC 27, Para  , , ; In re S, para ; Court of Session Practice, Maclaren, p.562; Rankin v. Jack 2010 SC 642; LLR v. COL  NZCA 209; Baran v. Beaty (2008) 526 F 3d 1340 (11th Cir Alabama)); In re C (A Child)  4 WLR 118, paras -, Parliament House Book, Scotland, Vol 8, Div C, Chapter 14, paragraph 14.8.6; D v. D 2002 SC 33.
2 children allegedly wrongfully removed at ages 4 and 7 – Nationals of the United States of America – Parents pending divorce – Father national of USA – Mother national of USA, UK and Ireland – Parents were still married at the time of mother’s wrongful retention – Children lived in Illinois, USA (until 8 June 2022) – Application for return filed with the courts of Illinois, USA on 2 September 2022 – Return ordered 28 February 2023 – Main issues: Where there is a grave risk of harm to the children under Article 13(1)(b) the analysis of protective measures should not be limited to the measures available but should also consider whether these measures would be effective in the specific circumstances.
The mother and father were married and had two children, aged 4 and 7. The father was a US national and the mother a UK, US and Irish national. In June of 2022, the mother and the children travelled from the US, their place of residence, to Scotland, with the consent of the father. The mother did not return to the US as planned, which both parties agree was wrongful retention under Article 3 of the Hague Convention.
In August and September 2022, the father raised proceedings for dissolution of marriage and an emergency order for return in the Circuit Court of the Nineteenth Judicial Circuit in Illinois, and the court issued an order for their immediate return. When the mother refused to return with the children the father enrolled a motion seeking a finding that the mother was in contempt of court.
In October 2022 the father made an application for return under the 1980 Hague Convention. The mother presented evidence of serious physical and emotional abuse spanning two years. The Lord Ordinary then reserved judgment and continued the second hearing to acquire more evidence from both parties on consent and necessity of protective measures.
In February 2023 the Lord Ordinary ordered the return of the children subject to confirmation that the father had withdrawn the contempt application against the mother. Though there was evidence of messages from the father which could be considered harassment of the mother, the Lord Ordinary did not find that this amounted to a grave risk of harm to the children and this was a matter for the Illinois court to consider when determining the best interests of the children. The Lord Ordinary accepted that there was a clear need for protective measures and concluded that there were sufficient legal remedies available in the Illinois courts.
The Court of Session allowed the appeal and made an order refusing the return of the children. The Court ruled that returning the children would amount to a grave risk of harm under Article 13(1)(b), and as the father was unlikely to comply with any protective measures imposed by the Illinois courts, the grave risk of physical, psychological, and financial harm to the children could not be mitigated.
The Court of Session found that the Lord Ordinary erred in analysing only the measures available and failed to consider whether these measures would be effective, as the father did not appear to appreciate the impact of his behaviour, nor had he indicated any willingness to adjust his actions in response to the initiation of court proceedings. The presence of legal remedies in Illinois was not disputed; rather, the issue was whether the mother was able to access legal representation there, and whether the father would comply. On the former, the Court of Session disagreed with the Lord Ordinary, as the court found that the mother would face potentially devastating consequences from not having legal representation; on the latter, the Court of Session found that there was substantial risk of noncompliance.
The Court of Session used a staged approach to determine if there would be a grave risk. The court first asked if, were the disputed allegations true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If it concludes that there would be such a grave risk, the court must then ask how the child can be protected against the risk.
In this case, the risks identified in the allegations of physical injury and sexual assault were corroborated by a large volume of text messages. In order to return the children, it would be necessary to determine that considering the grave risk, there are sufficient measures to protect the children; however, the father’s demonstrated unwillingness to comply with any such orders indicates that return could not be done in a manner to protect the children from grave risk.
Author: Ellie Webb