CASE

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Case Name

Re D. (Article 13B: Non-return) [2006] EWCA Civ 146

INCADAT reference

HC/E/UKe 818

Court

Country

UNITED KINGDOM - ENGLAND AND WALES

Name

Court of Appeal

Level

Appellate Court

Judge(s)
Thorpe, Wall LL.J. Coleridge J.

States involved

Requesting State

VENEZUELA

Requested State

UNITED KINGDOM - ENGLAND AND WALES

Decision

Date

25 January 2006

Status

Final

Grounds

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

Order

Return refused

HC article(s) Considered

13(1)(b)

HC article(s) Relied Upon

13(1)(b)

Other provisions

-

Authorities | Cases referred to
Nazzareno Z v. Donna Suzzane Z [2005] EWCA Civ 1012; Re S. [2002] EWCA Civ 908.
Published in

-

INCADAT comment

Exceptions to Return

Grave Risk of Harm
UK - England and Wales Case Law

SUMMARY

Summary available in EN | FR

Facts

The application related to two sisters aged 7 and 5 years old at the date of the hearing. They grew up in Venezuela before being wrongfully removed to the United Kingdom by their mother in June 2002. Four months later a return order was made in Hague Convention proceedings.

The parents then engaged in multiple court proceedings which were on-going when the mother took the girls to England in July 2005 for a vacation. This visit was undertaken pursuant to a court order. However, the mother did not return and the father commenced return proceedings again.

On 15 December 2005 the High Court refused to make a return order, finding that if sent back the girls would be exposed to a grave risk of harm. The father appealed.

Ruling

Appeal dismissed and return refused; this was an exceptional case where the standard of harm envisaged within Article 13(1)(b) had been reached.

Grounds

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

Central to the finding of the High Court was the fact that in June 2005 the mother was the vicitim of a pre-meditated and targeted shooting while the father had also been the victim of attacks. The judge therefore concluded that the children were in danger of physical injury if present with either of their parents at the time of such attacks. She noted that 24 hour protection would diminish such risks, but could not provide complete protection. In appealing the father attacked various aspects of the judgment, including the judge's evaluation of the mother's evidence, her acceptance of expert testimony which was not always objective and in speculating as to the outcome of the on-going proceedings in Venezuela. The Court of Appeal accepted some of these points but nevertheless found that they did not undermine the essence of the case or affect the reality of the harm that the children would be exposed to. Of primary importance for the trial judge was the emotional harm it was clear the children would face if returned. Expert evidence affirmed it was important that the girls remain with their mother, in a place where the latter enjoyed stability, to enable them to acquire emotional stability. While accepting this assessment, the Court of Appeal was prepared to go further than the trial judge, suggesting that the physical risks alone were sufficient to activate the exception. It reiterated however that it was an exceptional case.

The court agreed with the trial judge at para. 28 that “the children have not been subject to any attack and are less likely to be targeted victims than their parents, but [were] in danger of physical injury if present with either of their parents at the time of such attacks”. The court also noted that the trial judge found that “24 hour constant supervision by armed guards […] in itself would not provide complete protection but would diminish the risk somewhat”.

INCADAT comment

UK - England and Wales Case Law

The English Court of Appeal has taken a very strict approach to Article 13 (1) b) and it is rare indeed for the exception to be upheld.  Examples of where the standard has been reached include:

Re F. (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam 224, [INCADAT cite: HC/E/UKe 8];

Re M. (Abduction: Psychological Harm) [1997] 2 FLR 690, [INCADAT cite: HC/E/UKe 86];

Re M. (Abduction: Leave to Appeal) [1999] 2 FLR 550, [INCADAT cite: HC/E/UKe 263];

Re D. (Article 13B: Non-return) [2006] EWCA Civ 146, [2006] 2 FLR 305, [INCADAT cite: HC/E/UKe 818];

Klentzeris v. Klentzeris [2007] EWCA Civ 533, [2007] 2 FLR 996 [INCADAT cite: HC/E/UKe 931].