(Court of Appeal, Beatson, Macur, Sales LJJ, 9 August 2016)
Abduction – Hague Convention, Art 13(b) – Return order refused – Father’s proposed undertakings deemed insufficient – Appeal – Whether the judge had erred in her approach
The father’ appeal from a refusal to make a return order was allowed.
In 2016 the mother and children, who had been living in the USA, travelled to the UK for a holiday. When the mother failed to return the father applied for their summary return. The mother opposed the application on the basis of Art 13(b) of the Hague Convention that a return would expose the children to a grave risk of harm or otherwise place them in an intolerable situation. She alleged physical, emotional and sexual abuse by the father. The father disputed the allegations but accepted that the marriage had been volatile which might have at times affected the children.
The father offered undertakings including, inter alia, not to seek the mother’s prosecution for child abduction, to provide a property for the use of the mother and children, and to consent to a non-molestation order. The judge approached the case on the basis of the mother’s allegations at their highest and found the father’s assurances were insufficient to meet the needs of the children. The father’s application was refused. He appealed.
The appeal was allowed. The Court of Appeal emphasised that the correct approach was set out in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27. Proceedings for a return order were summary in nature and were not the forum for resolving factual disputes as to risk and extent of harm. The judge in this instance had placed too much reliance on aspects of the Cafcass assessment without hearing the parties’ evidence on the disputed facts which gave the impression that she had reached adverse conclusions against the father and was sympathetic to the mother’s case.
The judge’s approach to the protective measures was also wrong. Although there were live issues raised by the mother regarding the property to be made available for her and the children, there was no basis upon which she could legitimately doubt the efficacy of the US courts or police in enforcing protective measures for as long as they were necessary. There was no reason why an order for return could not have been made conditional upon the father obtaining the landlord’s written consent so as to securely accommodate them and obtaining advance injunctive orders.
