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The case involves the wrongful retention of T, a dual British-American national born in 2020. On February 3 2023, the mother ('M') brought T to England for a vacation. M wrongfully retained T in the UK despite promising to return by 1 March 2023. M alleges domestic abuse against the father ('F') and suffers from depression. 

F was granted a temporary order in Texas, establishing the USA as T's habitual residence, granting F significant parental rights while limiting M's, and ordering M to return T by 31 May 2023. After M failed to comply, F initiated 1980 Hague Convention proceedings in England on 22 June 2023. The mother submitted evidence regarding domestic abuse and requested protective measures. The final hearing was set for 22 August 2023 in absence of a direction for ADR.  

At the hearing's start, M's counsel requested an adjournment for a Texan law expert on protective measures, which the judge denied. After a subsequent adjournment, the parties returned, mostly agreed on matters, leading the judge to seek a consent order. Disputes remained over the substance, enforceability, and duration of the protective measures which were pre-conditions for M's return. The judge noted insufficient evidence on these disputes. Nonetheless, the court received a draft consent order with undertakings by F notwithstanding that M's counsel raised additional terms. The case was re-listed for 24 August. 

On 23 August, M sought to instruct a mental health expert, citing severe flashbacks from alleged abuse following the hearing and, consequently, stated her inability to return to the USA (a change from the previous day).

On 24 August, the judge determined a substantive agreement that M would return to the USA with T. Citing Rose and Xydhias, the judge decided M should be bound to this and that the details could be left to a Texan court. The judge held that M's decline in mental health post-22 August hearing was not a material change of circumstances that permitted her to renege and accordingly made two orders:

• i. Dismissing M's application for medical evidence
• ii. Mandating M's return with T (By Consent), F having given undertakings to the court. (Notably, it was later determined that these undertakings were never agreed with finality).

M appealed both orders on 11 September 2023.

Appeal allowed against the return consent order after a finding that there was not proper consent. There was wrongful retention, however, the exception of grave harm under Article 13(1)(b) was made out. Return was refused.

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

Where an Article 13(1)(b) defence is raised by the respondent, the applicant, in this case F, should ensure relevant information is obtained in order to propose protective measures:

1. Protective measures should be addressed early on;
2. Early pleading is essential so the issues are reflected in case management directions and considered at the final hearing; 
3. The court must be satisfied that protective measures will alleviate Article 13(1)(b) risks; 
4. Not all undertakings are transferable between jurisdictions. Caution should be taken when relying on undertakings as protective measures;
5. Protective measures mitigate Article 13(1)(b) risks and are distinguishable from soft landing provisions which facilitate a child's comfortable return. 

The subsisting Texan court order reduced M's care and contact regarding T, and imposed financial penalties on M. The strain of this and alleged abuse by F meant M had raised a valid Article 13(1)(b) exception. 

The appellate court ruled that counsel and the judge became embroiled in a debate as to whether F's offers should be undertakings or orders, thereby missing the point that the protective measures needed to actually be effective in Texas. The judge did not have the material to determine whether they could have been effective and should not have made the orders she did. 

Non-Convention Issues

Ultimately, it was determined that Rose and Xydhias were of little relevance to the present case because Re T concerned contested 1980 Hague Convention proceedings, rather than financial remedies matters. Further, Rose and Xydhias were distinguished because the agreements in those matters were complete. 

The judge was wrong to determine that the parties reached an agreement on 22 August. The mother had insisted on having protective measures in place in Texas before considering a return and that these be enforceable in Texas. The judge, admittedly, did not have the evidence to determine this. Therefore, the 'consent' order with informally given undertakings by F did not provide the desired protection for either T or M and thus did not represent agreement on the core issues. 

The court should have considered M's change of position regarding return on 23 August, especially as it was communicated before the final order was made. The judge erred and should have considered why M changed her position and what this meant from T's point of view. 

The appellate court held that the need for swift resolution under art.11 of the 1980 Hague Convention should not overshadow the importance of achieving the right outcome in the child's best interest. Without the proper measures in place, Article 13(1)(b) was made out and return was refused.

Author: Daisy Holland (Judicial Assistant)