HC/E/UKe 1147
Reino Unido - Inglaterra y Gales
última instancia
Australia
Reino Unido - Inglaterra y Gales
14 March 2012
Definitiva
Grave riesgo - art. 13(1)(b) | Derechos humanos - art. 20 | Cuestiones procesales
Apelación concedida, restitución denegada
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The Court reiterated its interpretation that whilst technically the establishment of a grave risk of harm for the purposes of Article 13(1)(b) confers a discretion whether to make a return order, in reality it was impossible to conceive of circumstances in which, once such a risk was found to exist, it would be a legitimate exercise of the discretion nevertheless to order the child's return: see Re D (A Child) (Abduction: Rights of Custody)[2006] UKHL 51, [2007] 1 AC 619, para 55 [INCADAT Reference: HC/E/UKe 880].
The mother had produced evidence at trial from her Australian doctor (GP) to the effect that her health would suffer greatly if she were required to return to Australia. She also presented evidence from an Australian psychologist who stated she was concerned the mother's anxiety would become crippling were a return to be ordered.
A jointly instructed psychiatrist interviewed the mother in advance of the trial and he suggested that the mother had, when in Australia, suffered from Battered Women's Syndrome, being a form of Post-Traumatic Stress Disorder, followed, upon the events leading to the breakdown in the relationship, by an acute stress reaction.
He noted that she was now stable and her symptoms of acute stress had resolved, but added that the likely psychiatric and psychological impact on the mother of a return to Australia was significant and severe. As regards protective measures which could safeguard the effect on the mother's mental health of a return, the Supreme Court found that the psychiatrist's recommendation was that it was necessary for the father to get psychological treatment.
Subjective Perceptions:
The Supreme Court recalled that in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144 [2011] UKSC 27 [INCADAT Reference: HC/E/UKe 1068] it had previously accepted that 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.
The trial judge was held to have faithfully followed the Supreme Court's guidance as to how to deal with allegations of domestic abuse: he assumed the allegations were true; he concluded on that assumption and in the light of the mother's psychological health that protective measures would not obviate the grave risk that, if returned to Australia, the child would be placed in an intolerable situation.
He then considered whether the allegations were indeed true and he concluded that the mother had made out a good prima facie case that she was the victim of significant abuse at the hands of the father. The Supreme Court held that it was not therefore necessary for the trial judge to address the mother's subjective perceptions.
The Supreme Court criticised the Court of Appeal for treating the mother's defence as being merely her subjective perception of risks which might lack any foundation in reality. It confirmed that the judgment in Re E (Children) (Abduction: Custody Appeal) had not served to raise the bar against applicants seeking a return order where the respondent relied on a subjective perception of the risks and consequences of return.
The Supreme Court also clarified that the judgment in Re E (Children) (Abduction: Custody Appeal) was more than a "restatement" of the law of the 1980 Hague Child Abduction Convention, rather it was primarily "an exercise in the removal from it of disfiguring excrescence."
Clarifying the effect of what had been stated in Re E (Children) (Abduction: Custody Appeal) with regard to subjective perceptions, the Supreme Court held that: "The critical question is what will happen if, with the mother, the child is returned. 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."
In considering the bases for appeal, the Supreme Court concluded that the Court of Appeal had failed to appreciate that the mother's fears about the father's likely conduct rested on more than disputed allegations; paid scant regard to the unusually powerful nature of the medical evidence about the mother; failed to recognise that the judgment about the level of risk required for the purposes of Art 13(1)(b) was one to be made by the trial judge and so should not be overturned unless, whether by reference to the law or to the evidence, it had not been open to him to make it.
Charles J was right to give central consideration to the interim protective measures offered by the father. But his judgement was that, in the light of the established history between the parents and of the mother's acute psychological frailty for which three professionals vouched, they did not obviate the grave risk to the child.
The Supreme Court noted that it was open to the trial judge to find that the interim protective measures offered by the father did not obviate the grave risk to the mother, therefore it was not open to the Court of Appeal to substitute its contrary view. Consequently the appeal was allowed and the order of the child judge was restored.
The Court's attention was drawn to the ruling of the European Court of Human Rights in X v. Latvia (Application No.27853/09) [INCADAT Reference: HC/E/ 1146] which reiterated, at para 66, in terms identical to those in para 139 of the Grand Chamber ruling in Neulinger and Shuruk v. Switzerland, No 41615/07 [INCADAT Reference: HC/E/ 1323], the suggested requirement of an in-depth examination in the determination of applications under the 1980 Hague Child Abduction Convention.
The Supreme Court reiterated its position, first expressed in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144 [2011] UKSC 27 [INCADAT Reference: HC/E/UKe 1068], at paras 22 to 27, that neither the Hague Convention nor, Article 8 of the European Convention on Human Rights requires the court which determines an application under the former to conduct an in-depth examination of the sort described. It added that such an approach would be entirely inappropriate.
In Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144 [2011] UKSC 27 [INCADAT Reference: HC/E/UKe 1068] the Supreme Court held that where allegations of domestic abuse are made the court should first ask whether, if true, there would be a grave risk that the child would be exposed to a grave risk of harm or an intolerable situation.
In the present case this issue led to a direction being made that there should be a preliminary hearing on the matter. This direction was criticised by both the trial judge and the Court of Appeal. The Supreme Court accepted that it would have been better for the direction not to have been given.
First, at a general level, the approach commended in Re E (Children) (Abduction: Custody Appeal) should form part of the court's general process of reasoning in its appraisal of a defence under the article and does not require formal identification as a preliminary point.
Second, and more importantly, the guidance related to factual "disputes" and to resolution of the "disputed" issues. In the present case however a number of important allegations made by the mother against the father were admitted or at least, it was conceded that they could not realistically be denied.
Author of the summary: Peter McEleavy
See also the decision taken by the Court of Appeal: S. v. C. (Abduction: Art.13 Defence: Procedure) [2011] EWCA Civ 1385; [2012] 1 F.C.R. 172 [INCADAT Reference: HC/E/FR 1148].
The drafting of Article 13 makes clear that where one of the constituent exceptions is established to the standard required by the Convention, the making of a non-return order is not inevitable, rather the court seised of the return petition has a discretion whether or not to make a non-return order.
The most extensive recent overview of the exercise of the discretion to return in child abduction cases has come in the decision of the supreme United Kingdom jurisdiction, the House of Lords, in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT cite: HC/E/UKe 937].
In that case Baroness Hale affirmed that it would be wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which a return might be refused were themselves exceptions to the general rule. It was neither necessary nor desirable to import an additional gloss into the Convention.
The manner in which the discretion would be exercised would differ depending on the facts of the case; general policy considerations, including not only the swift return of abducted children, but also comity between Contracting States, mutual respect for judicial processes and deterrence of abductions, had to be weighed against the interests of the child in the individual case. A court would be entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. Sometimes Convention objectives would be given more weight than the other considerations and sometimes they would not.
The discretionary nature of the exceptions is seen most commonly within the context of Article 13(2) - objections of a mature child - but there are equally examples of return orders being granted notwithstanding other exceptions being established.
Consent
Australia
Kilah & Director-General, Department of Community Services [2008] FamCAFC 81 [INCADAT cite: HC/E/AU 995];
United Kingdom - England & Wales
Re D. (Abduction: Discretionary Return) [2000] 1 FLR 24 [INCADAT cite: HC/E/UKe 267].
Acquiescence
New Zealand
U. v. D. [2002] NZFLR 529 [INCADAT Cite: HC/E/NZ @472@].
Grave Risk
New Zealand
McL. v. McL., 12/04/2001, transcript, Family Court at Christchurch (New Zealand) [INCADAT Cite: HC/E/NZ @538@].
It may be noted that in the English appeal Re D. (Abduction: Rights of Custody) [2006] UKHL 51; [2007] 1 AC 619 [INCADAT cite: HC/E/ UKe @880@] Baroness Hale held that it was inconceivable that a child might be returned where a grave risk of harm was found to exist.
Courts have responded in different ways when faced with allegations that the left-behind parent has acted inappropriately or sexually abused the wrongfully removed or retained children. In the most straightforward cases the accusations may simply be dismissed as unfounded. Where this is not possible courts have been divided as to whether a detailed investigation should be undertaken in the State of refuge, or, whether the relevant assessment should be conducted in the State of habitual residence, with interim measures being taken to attempt to protect the child on his return.
- Accusations Dismissed:
Belgium
Civ. Liège (réf) 14 mars 2002, Ministère public c/ A [INCADAT Reference: HC/E/BE 706]
The father claimed that the mother sought the return of the child to have her declared mentally incapable and to sell her organs. The Court held, however, that even if the father's accusations were firmly held, they were not backed up by any evidence.
Canada (Québec)
Droit de la famille 2675, No 200-04-003138-979 [INCADAT Reference: HC/E/CA 666]
The Court held that if the mother had serious concerns with regard to her son, then she would not have left him in the care of the father on holiday after what she claimed there had been a serious incident.
J.M. c. H.A., Droit de la famille, No 500-04-046027-075 [INCADAT Reference: HC/E/CA 968]
The mother claimed that a grave risk arose because the father was a sexual predator.
The Court noted that such allegations had been rejected in foreign proceedings. It equally drew attention to the fact that Convention proceedings concerned the return of the child and not the issue of custody. The fears of the mother and of the maternal grandparents were deemed to be largely irrational. There was also no proof that the judicial authorities in the State of habitual residence were corrupt. The Court instead expressed concerns about the actions of members of the maternal family (who had abducted the child notwithstanding the existence of three court orders to the contrary) as well as the mental state of the mother, who had kept the child in a state of fear of the father.
France
CA Amiens, 4 mars 1998, No de RG 5704759 [INCADAT Reference: HC/E/FR 704]
The Court rejected the allegation of physical violence against the father; if there had been violence, it was not of the level required to activate Article 13(1)(b).
New Zealand
Wolfe v. Wolfe [1993] NZFLR 277 [INCADAT Reference: HC/E/NZ 303]
The Court rejected arguments by the mother that the father's alleged sexual practices would place the child at a grave risk of harm. The Court held that there was no evidence a return would expose the child to the level of harm contemplated under Article 13(1)(b).
Switzerland
Obergericht des Kantons Zürich (Appellate Court of the Canton Zurich), 28/01/1997, U/NL960145/II.ZK [INCADAT Reference: HC/E/CH 426]
The mother argued that the father was a danger to the children because, inter alia, he had sexually abused the daughter. In rejecting this accusation, the Court noted that the mother had previously been willing to leave the children in the father's sole care whilst she went abroad.
- Return ordered with investigation to be carried out in the State of habitual residence:
United Kingdom - England and Wales
N. v. N. (Abduction: Article 13 Defence) [1995] 1 FLR 107 [INCADAT Reference: HC/E/UKe 19]
The possible risk to the daughter needed to be investigated in the pending custody proceedings in Australia. In the interim, the child needed protection. However, this protection did not require the refusal of the application for her return. Such risk of physical harm as might exist was created by unsupervised contact to the father, not by return to Australia.
Re S. (Abduction: Return into Care) [1999] 1 FLR 843 [INCADAT Reference: HC/E/UKe 361]
It was argued that the allegations of sexual abuse by the mother's cohabitee were of such a nature as to activate the Article 13(1)(b) exception. This was rejected by the Court. In doing this the Court noted that the Swedish authorities were aware of the case and had taken steps to ensure that the child would be protected upon her return: she would be placed in an analysis home with her mother. If the mother did not agree to this, the child would be placed in care. The Court also noted that the mother had now separated from her cohabitee.
Finland
Supreme Court of Finland 1996:151, S96/2489 [INCADAT Reference: HC/E/FI 360]
When considering whether the allegations of the father's sexual abuse of his daughter constituted a barrier to returning the children, the Court noted that one of the objectives of the Hague Child Abduction Convention was that the forum for the determination of custody issues was not to be changed at will and that the credibility of allegations as to the personal characteristics of the petitioner were most properly investigated in the spouses' common State of habitual residence. In addition, the Court noted that a grave risk of harm did not arise if the mother were to return with the children and saw to it that their living conditions were arranged in their best interests. Accordingly, the Court found that there was no barrier to the return of the children.
Ireland
A.S. v. P.S. (Child Abduction) [1998] 2 IR 244 [INCADAT Reference: HC/E/IE 389]
The Irish Supreme Court accepted that there was prima facie evidence of sexual abuse by the father and that the children should not be returned into his care. However, it found that the trial judge had erred in concluding that this amounted to a grave risk of harm in returning the children to England per se. In the light of the undertakings given by the father, there would be no grave risk in returning the children to live in the former matrimonial home in the sole care of their mother.
- Investigation to be undertaken in the State of refuge:
China - (Hong Kong Special Administrative Region)
D. v. G. [2001] 1179 HKCU 1 [INCADAT Reference: HC/E/HK 595]
The Court of Appeal criticised the fact that the return order had been made conditional on the acts of a third party (the Swiss Central Authority) over whom China's (Hong Kong SAR) Court had neither jurisdiction nor control. The Court ruled that unless and until the allegations could be discounted altogether or after investigation could be found to have no substance, it was almost inconceivable that the trial court's discretion could reasonably and responsibly be exercised to return the child to the environment in which the alleged abuse took place.
United States of America
Danaipour v. McLarey, 286 F.3d 1 (1st Cir. 2002) [INCADAT Reference: HC/E/USf 459]
The Court of Appeals for the First Circuit ruled that great care had to be exercised before returning a child where there existed credible evidence of the child having suffered sexual abuse. It further stated that a court should be particularly wary about using potentially unenforceable undertakings to try to protect a child in such situations.
Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008) [INCADAT Reference: HC/E/USf 971]
The District Court had appointed an independent expert in paediatrics, child abuse, child sexual abuse and child pornography, to assess whether the photographs of the sons constituted child pornography and whether the behaviour problems suffered by the children were indications of sexual abuse. The expert reported that there was no evidence to suggest that the father was a paedophile, that he was sexually aroused by children, or that the pictures were pornographic. The expert approved of the German investigations and stated that they were accurate assessments and that their conclusions were consistent with their reported observations. The expert determined that the symptoms that the boys displayed were consistent with the stress in their lives caused by the acrimonious custody dispute and recommended that the boys not undergo further sexual abuse evaluation because it would increase their already-dangerous stress levels.
- Return Refused:
United Kingdom - Scotland
Q., Petitioner [2001] SLT 243 [INCADAT Reference: HC/E/UKs 341]
The Court held that there was a possibility that the allegations of abuse were true. It was also possible that the child, if returned, could be allowed into the unsupervised company of the alleged abuser. The Court equally noted that a court in another Hague Convention country would be able to provide adequate protection. Consequently it was possible for a child to be returned where an allegation of sexual abuse had been made. However, on the facts, the Court ruled that in light of what had happened in France during the course of the various legal proceedings, the courts there might not be able or willing to provide adequate protection for the children. Consequently, the risk amounted to a grave risk that the return of the girl would expose her to physical or psychological harm or otherwise place her in an intolerable situation.
United States of America
Danaipour v. McLarey, 386 F.3d 289 (1st Cir. 2004) [INCADAT Reference: HC/E/USf 597]
Having found that sexual abuse had occurred, the Court of Appeals ruled that this rendered immaterial the father's arguments that the courts of Sweden could take ameliorative actions to prevent further harm once the children had been returned. The Court of Appeals held that in such circumstances, Article 13(1)(b) did not require separate consideration either of undertakings or of the steps which might be taken by the courts of the country of habitual residence.
(Author: Peter McEleavy, April 2013)
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].
Preparation of INCADAT case law analysis in progress.