26 May 2011

This week, in E (Children) UKSC 2011/0084, the Supreme Court heard argument about the correct approach to the Article 13(b) exception to the duty to return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Article 13(b) provides that the requested State (to which a child has been abducted) is not bound to order a child's return to the country from which he was abducted if it can be established that "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

One of the many questions the Supreme Court has to determine is whether various previous decisions of the lower courts regarding the Article 13(b) exception have added an impermissible gloss to it. If so, goes the argument, the exception has been incorrectly elevated to such an extent that the threshold is almost impossible to cross. The contrary argument is that the deployment of words such as "restrictive" and "stringent" in earlier cases was simply explanatory in order to describe the exceptionality of the prevailing circumstances necessary to engage Article 13(b).

Whether or not the classic approach to the exception is upheld or a more nuanced version of it developed, the fact remains that the overarching objective of the Convention is to secure the prompt return of children wrongfully removed to or retained in any Contracting State.

Historically our courts have assiduously followed the letter of the Convention and, in cases involving abduction from fellow signatory States, the additional requirements imposed by Article 11 of the Brussels II Revised regulation.

This approach to child abduction cases is interesting given the extremely liberal approach our courts apply to applications by one or other parent to relocate overseas. I have previously written about relocation cases and the apparently matricentric (rather than child centred) approach that the courts have taken following Payne v Payne.

The different approaches to abduction and relocation cases create a paradox. English courts will generally look favourably on an application by a non-UK national mother to relocate with her children to her country of origin. Meanwhile, UK national mothers who abduct children to this country will generally find that their children will be summarily returned overseas even though the country to which they are returned may take a far more conservative approach to relocation. Indeed in some countries it is virtually impossible to obtain an order for permission to relocate overseas - which of itself may be the driver for abduction in the first place.

Since both abduction and relocation have significant consequences for children, the difference in our courts' approach to both is perplexing.  

Indeed, in the conclusion to her 2009 Reunite report, Dr Marilyn Freeman had this to say:

"Relocation cases are the closest relations in private law proceedings to care proceedings in public law, or adoption proceedings [...] Relocation cases are not cases simply about contact - they are cases about relocation, and its impact on the child concerned. This is the root of the issue. This is where the child's best interest must be addressed and considered."

It is difficult to argue otherwise.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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