H Children, Re

Under article 13(b) of the Hague Convention, the risk must be grave and the threatened harm serious. Clear and compelling evidence is required. The exception must not become a general welfare inquiry.

A Convention return is to the jurisdiction of habitual residence, not necessarily to the left-behind parent or the former home. Unless compelling evidence shows otherwise, the requested court should assume that the courts and agencies of the habitual-residence state can protect the children. Immediate safeguards may be arranged before return, while longer-term welfare decisions remain for that state.

A Belgian father sought the return of his three children after their mother unlawfully removed them from Belgium to England. Habitual residence, rights of custody and the unlawfulness of the removal were admitted.

Singer J accepted allegations of prolonged violence, drunkenness and threats. He held that return presented a grave risk under article 13(b) of the Hague Convention and exercised his discretion against return. The father appealed.

The central issues were whether the judge could make firm findings from disputed, untested affidavit evidence, whether the Belgian authorities could provide effective protection, and whether protective arrangements could permit a safe return.

Appeal allowed unanimously. The President delivered the leading judgment. Mummery and May LJJ agreed.

1. Article 13(b) provides an exceptional defence. Its threshold is high. The risk must be grave, the harm serious and the evidence clear and compelling. The exception must not become a substitute for the welfare inquiry properly belonging to the courts of habitual residence.

2. The judge was not entitled, in summary proceedings conducted without oral evidence, to make firm findings on contested and untested allegations that the father controlled the family through violence and threats, was irrational and unstable, or constituted an uncontrollable risk. The documents nevertheless disclosed a seriously unsatisfactory family environment. Returning the children directly to the former home and immediately to the father's care might expose them to an intolerable situation.

3. A Convention return is to the jurisdiction of habitual residence, not necessarily to the left-behind parent or the previous living arrangements. The Belgian police, courts and child-protection agencies had been involved with the family for several years. The English court was not entitled to assume that those authorities lacked the will or capacity to protect the children.

4. Following the approach in Re C (A Minor) (Abduction) [1989] 1 FLR 403, the requested court should assume, absent compelling evidence to the contrary, that the courts of habitual residence will minimise or eliminate the relevant harm. Its own concern should ordinarily extend to maximum protection until those courts resume their proper role.

5. The children's immediate return to their father was inappropriate. A short delay could be used to secure housing and financial support for the mother and children, regulate interim contact, address the Belgian order granting the father sole parental authority, and facilitate prompt intervention by the Belgian courts or agencies.

The case was remitted to a different Family Division judge to settle the mechanics and safeguards for return to Belgium, which was expected within two to three months if the necessary arrangements were resolved.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 355, unanimously allowed the father's appeal and remitted the case to a different Family Division judge to arrange a protected return to Belgium.
2. High Court, Family Division: Singer J held that the article 13(b) grave-risk threshold was met, exercised his discretion against return and made protective directions. No citation is stated.