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The mother ('M'), a British national, moved to Spain aged 16. M met the father ('F'), a Moroccan national living in Spain, in either 2014 or 2016. They had three children together in 2018, 2019, and 2021. The family lived with M's parents until M's parents moved to England in 2019. M, F, and children moved frequently within Spain thereafter. 

In September 2020, Spanish authorities placed the children in foster care due to poor living conditions, health neglect, and other issues. The children were returned to their parents in April 2021 following a favourable assessment. 

M wrongfully removed the children to England on 23 August 2021. F applied under the 1980 Hague Convention for their return on 25 February 2022. M averred that F had consented under art.13(1)(a) (which F denies) and further raised an art.13(1)(b) defence, alleging abuse and financial hardship if they returned to Spain (F also denies these claims). Spanish reports indicated continued support for the family but emphasised the potential for foster care if conditions did not improve. 

The hearing was listed for 9 June 2022 following delays and difficulties in getting parents to file various statements and documents. At the outset, M applied for permission to give oral evidence on the issue of consent and for an adjournment to obtain evidence on her and the children's immigration status. The judge refused both. 

In respect of art.13(1)(a), the judge concluded that oral evidence was not needed on the matter of consent and determined that F had not consented. 

In respect of art.13(1)(b), M argued the following factors contributed to the grave risk of the children being exposed to physical or emotional harm on their return: M suffering physical and/or emotional abuse, uncertain immigration status, lack of basic necessities and finances, and the risk that M would be arrested for the wrongful removal. The judge concluded, taking into account protective measures and F’s possible undertaking not to seek prosecution of M, that art.13(1)(b) was not made out. 

The judge ordered the return of the three children. M appealed that decision.

The appeal was allowed on both grounds. The appellate court determined that the judge erred in not permitting oral evidence on the matter of consent and considering the art.13(1)(b) assertions independently, rather than collectively. The case was remitted accordingly.

Consent - Art. 13(1)(a)

Although there is no right to adduce oral evidence in 1980 Convention proceedings, the court has discretion to admit such evidence albeit the threshold is a high one (Re E; Re F). The appellate court held that the threshold will more often be crossed in respect of issues of consent. 

There was no direct documentary evidence on the matter of consent and M relied on alleged conversations between her and F, which F disputed, when asserting that F had consented to M taking the children to England. The judge was wrong not to hear oral evidence on consent. 

Grave Risk - Art. 13(1)(b)

The judge looked at the allegations by category, thereby failing to consider their overall effect. The judge also erred by failing to consider the level of risk to the children if M's allegations were true. 

Re E sets out the approach where there are allegations of domestic abuse under art.13(1)(b). The court should first ask whether, if the allegations were true, there would be a grave risk that the child would be exposed to harm or otherwise placed in an intolerable situation; if so, the court should then ask how the child could be protected against the risk. In the instant case, the judge conflated these two stages and failed to properly evaluate the nature of the risks or the protective measures. 

The appeal was allowed on both grounds and the matter remitted for a hearing.

Author: Daisy Holland (Judicial Assistant)