D (children), Re

Article 13(b) may be engaged by specific, targeted risks to children on return, as well as by grave psychological harm mediated through a parent’s fear and instability. Protective measures must reduce the risk to an acceptable level. Evidence from a parent seeking to justify removal requires rigorous and possibly sceptical scrutiny. However, weaknesses in that evidence do not defeat the defence where compelling independent evidence establishes grave physical or psychological risk.

Two children living in Venezuela were brought to England by their mother after she was shot in a targeted attack. She retained the children in England and relied on Article 13(b) of the 1980 Convention. The father sought their summary return under the Child Abduction and Custody Act 1985. Macur J upheld the mother’s defence. The father appealed, challenging the assessment of the mother’s evidence, the expert psychiatric and psychological evidence, and the treatment of continuing proceedings in Venezuela. The central issue was whether return would expose the children to a grave risk of physical or psychological harm.

1. Disposition. Thorpe LJ, with Wall LJ agreeing, granted permission to appeal but dismissed the appeal. Macur J had reached the correct conclusion under Article 13(b).
2. Mother’s evidence. Evidence from an abducting parent seeking to justify or explain the removal requires rigorous and perhaps sceptical scrutiny, especially where there has been a previous abduction or an outstanding application to relocate. The guidance in Nazzareno Z v Donna Suzzane Z [2005] EWCA Civ 1012 was repeated. Orders validating unlawful removal should be exceptional. Macur J’s treatment of the mother’s evidence was insufficiently critical, but the father’s criticism was weakened because the mother had not been called to give oral evidence on the disputed matters and the issue had not been squarely put to her.
3. Expert evidence. The judge was entitled to disregard an expert’s views where the expert entered the litigation arena, while relying on the diagnosis and prognosis based on facts established by the court. Her evaluation of Dr Turner’s evidence was justified.
4. Foreign proceedings. It was inappropriate to speculate about the likely outcome of continuing proceedings in Venezuela. Those proceedings could properly be recorded as part of the litigation history and as context, but should not have been used speculatively in the final exercise of discretion.
5. Article 13(b) risk. The findings established a real and grave risk of physical danger arising from targeted attacks on the parents, including danger to the children when present with either parent. Thorpe LJ considered that the physical risk alone might have been sufficient. The decisive basis, however, was the compelling evidence of grave psychological risk. The children were anxious about their own safety and their mother’s safety, and no measure could reduce that risk to an acceptable level. The distinction between generalised and specific risk was noted, with Re S [2002] EWCA Civ 908 cited as an illustration of generalised risk.

1. Court of Appeal (Civil Division) — In [2006] EWCA Civ 146, permission was granted and the father’s appeal was dismissed.
2. Principal Registry of the Family Division — Macur J, in a judgment dated 15 December 2005, upheld the mother’s reliance on Article 13(b) and refused the father’s application for return.