TB v JB

Article 13(b) of the Hague Convention is an exceptional qualification to the obligation of prompt return under Article 12. The risk must be grave, and the harm must be serious and intolerable, rather than the ordinary disruption and anxiety of return. Harm may include deterioration in the primary carer’s condition which materially impairs the care available to the children. The assessment must nevertheless assume that the abducting parent will take reasonable protective steps and make proper use of the courts of the habitual-residence state, unless there is evidence that effective protection is unavailable. The requested court must assess the likelihood and gravity of harm on that basis. A mature child’s objection creates a separate discretion, but it need not prevail where the child’s welfare and family unity favour return.

The father appealed against Singer J’s refusal to order the return of three children to New Zealand under the Hague Convention, incorporated into domestic law by the Child Abduction and Custody Act 1985. The mother had removed the children to England after a history of alleged domestic abuse by her second husband, who remained in New Zealand. Singer J found a grave risk under Article 13(b), principally because the mother might become unable to care for the children, and also considered the objections of the eldest child, K.

The central issues were whether the evidence established a grave risk of physical or psychological harm or an intolerable situation, whether the mother’s ability to protect herself and the children through New Zealand law had been properly considered, and how K’s objections should affect the discretionary decision.

1. Majority disposition. Arden LJ and Laws LJ allowed the appeal and ordered the children’s return to the jurisdiction of the New Zealand courts pursuant to Article 12. Hale LJ would have dismissed the appeal.
2. Article 13(b) framework. Article 13(b) is an exceptional remedy and must not become a substitute for the welfare jurisdiction of the courts of habitual residence. The risk must be serious and present, and the harm must be substantial. It must result from the return, rather than merely continue a condition which would exist in any event. The proceedings are summary, and clear and compelling evidence is required: per Laws LJ, the Convention’s policy, the exceptional nature of the defence and the summary procedure are interdependent.
3. Assessment of protective measures. Harm is capable of including deterioration in the mother’s condition which consequently impairs her ability to care for the children. However, the risk must be evaluated on the basis that the abducting parent will take all reasonable steps to protect herself and the children. In the absence of evidence to the contrary, the court must assume that the courts of the habitual-residence state can make and enforce appropriate protective orders. The mother had not shown that New Zealand could not provide adequate protection or therapeutic assistance. Re-evaluating the evidence on that basis, the majority held that the grave-risk threshold was not met.
4. Child’s objection. K was of sufficient age and maturity and objected to return, giving rise to a separate discretion under Article 13. Nevertheless, her close relationship with her mother and siblings, her mother’s likely return with the other children, and her New Zealand family connections justified ordering her return. The majority therefore ordered the return of all three children, with a stay of execution until 10 January 2001 and liberty to apply as to implementation.

• Court of Appeal (Civil Division): appeal from Singer J’s order dated 27 October 2000 allowed by Arden LJ and Laws LJ, with Hale LJ dissenting. Return ordered to New Zealand under Article 12.