L (A Child)

In an application for return under the Hague Convention, an Article 13 B defence must be determined on reliable evidence of the practical arrangements and risks attending return. A claimant’s imperfect conduct of the proceedings does not itself justify refusal of return. Undertakings should address genuine transitional difficulties, but ordinarily be confined to the short period before the courts of the child’s habitual residence resume control. Where the evidence establishes available immigration arrangements and adequate safeguards, a finding that the child cannot return with the primary carer is unsustainable.

The father sought the return of the child from England to the United States under the Hague Convention on the Civil Aspects of International Child Abduction. The mother relied on Article 13 B, contending that she faced practical, financial and immigration difficulties if required to return with the child.

Mr Justice Singer dismissed the originating summons after criticising the father’s failure to provide material and undertakings promptly. He concluded that he could not be satisfied that the mother would be able to accompany the child to the United States. The father appealed. By the hearing, his undertakings had been strengthened and a return hearing had been secured in Illinois. The central issues were whether the first-instance judge had properly assessed the evidence and whether the father’s procedural default justified refusal of return.

1. Appeal allowed. The return order was directed to take effect no earlier than 14 January, subject to the father’s undertakings.
2. The judge had erred in treating the father’s lax conduct as establishing a general principle that an applicant under the Hague Convention must demonstrate a particular level of procedural commitment before relief can be granted. Foreign applicants commonly litigate through central authorities and specialist solicitors, and may face substantial practical difficulties in communicating with the jurisdiction.
3. The evidence did not justify the finding that the mother could not accompany the child. As a United Kingdom citizen, she could use the United States visa waiver programme for a stay of up to 90 days. The evidence concerning Public Benefit Parole was a reassuring fall-back arrangement rather than a reason for concluding that admission was unavailable.
4. In assessing an Article 13 B defence, the court should consider practical safeguards needed to enable the child and carer to return safely. Undertakings concerning accommodation, travel, interim financial support, non-separation and access to the court of habitual residence were appropriate. Their scope should ordinarily be confined to the brief period between return and the resumption of control by that court.
5. The Irish Supreme Court decision in In the matter of R (A Minor) P v B [1995] 1 ILRM 201 provided a close analogy. It supported confining undertakings to the transitional period. The strengthened undertakings and the stamped Illinois summons provided adequate safeguards in the present case.
6. Additional directions were made concerning renewal and release of the mother’s passport, disclosure of papers to relevant United States legal advisers and courts, and assessment of costs.

• Court of Appeal (Civil Division): Allowed the father’s appeal from the order of Mr Justice Singer, subject to strengthened undertakings and a delayed return date.
• High Court: Mr Justice Singer dismissed the father’s Hague Convention originating summons, holding that the Article 13 B defence was established.