Klentzeris v Klentzeris

A court considering return under the 1980 Hague Convention must respect the high threshold for Article 13(b), but may refuse return in an exceptional case where reliable welfare evidence establishes likely psychological harm or an intolerable situation.

Under Article 11(4) of the Brussels II Revised Regulation, proposed protective arrangements must be adequate in reality. Separate accommodation and financial support do not prevent refusal where they do not reduce the identified risk. An appellate court should not interfere with a careful and rational exercise of first-instance discretion.

The father appealed from Kirkwood J’s dismissal of his application for the return of two children to Greece under the 1980 Hague Convention. The children had been taken from Athens to England after the family’s attempted reunification in Greece. The mother relied on Article 13(b), alleging a grave risk of physical or psychological harm or an intolerable situation, and also relied on the children’s objections.

The judge left the children’s-objections defence unresolved because he found the Article 13(b) defence established. He relied on a CAFCASS officer’s evidence that return was likely to cause psychological and emotional harm, and concluded that the father’s proposed safeguards would not remove that risk. The central issue was whether that conclusion was open on the evidence and consistent with the Convention and the Regulation.

1. Disposition. The Court of Appeal unanimously dismissed the appeal.
2. Article 13(b). Thorpe LJ held that Kirkwood J had fully recognised the obligation to return children removed from their habitual residence and the high threshold applicable to Article 13(b) of the 1980 Hague Convention. The case nevertheless fell within the most exceptional category because the CAFCASS officer gave unusually strong evidence of likely psychological harm. The judge was entitled to rely on that evidence, which remained unshaken after oral examination.
3. Protective arrangements. The father’s proposals for separate accommodation and financial independence were carefully considered under Article 11(4) of the Brussels II Revised Regulation. They did not diminish the likelihood of psychological harm. The judge was therefore entitled to refuse return on that ground alone. His failure to determine finally the alternative children’s-objections defence caused no error because the Article 13(b) defence was sufficient.
4. Appellate review. The decision involved an evaluative discretion exercised by an experienced Family Division judge. There was no flaw in his self-direction, reasoning or treatment of the welfare evidence. Wall LJ agreed, emphasising that the evidence satisfied Article 11(2) and that the judgment fulfilled Article 11(4). Gage LJ likewise found the conclusion properly supported by the evidence and free from error.
5. Procedural guidance. Thorpe LJ reinforced earlier guidance that, in international child cases, judges should ask at the conclusion of judgment whether permission to appeal is sought and should consider abbreviating the ordinary 21-day period under the CPR. The appellate timetable should be consistent with Article 11(3)’s requirement for expedition. This guidance was obiter.
6. The court also noted that Articles 11(7) and 11(8) enable the court of habitual residence to make a return order despite failure of an application in another Member State, with enforcement through Section 4 of Chapter 3.

1. Court of Appeal (Civil Division): On 10 May 2007, dismissed the appeal. [2007] EWCA Civ 533
2. High Court of Justice, Family Division: Kirkwood J dismissed the father’s return application on 3 April 2007, relying on the Article 13(b) defence.