S v C

In a return application under the 1980 Hague Abduction Convention, Article 13(b) requires an objective assessment of the asserted risk and the protection available on return. A respondent’s subjective perception may be the source of risk, but it does not remove the need to ask whether the asserted anxieties are realistically and reasonably held in light of enforceable undertakings and protective measures. The court must address why specific protections are insufficient. The emotional toll of relocation proceedings that properly belong in the child’s state of habitual residence should not convert an abduction into an Article 13(b) exception. Re E, [2011] UKSC 27, restated existing Convention law and did not require a new preliminary-issues procedure.

An Australian father appealed after Charles J refused his application for the return of the parties’ child to Australia under the 1980 Hague Abduction Convention. The mother had taken the child to England following the breakdown of the relationship and relied on Article 13(b), asserting domestic abuse and serious psychological consequences on return.

The first-instance judge considered protective measures and expert evidence, and concluded that return would create a grave risk that the child would be placed in an intolerable situation. The father argued that the judge had misunderstood Re E, failed properly to assess the protective package, and wrongly treated anticipated relocation proceedings as increasing the risk. The central issue was whether a protected return would nevertheless engage Article 13(b).

1. Appeal allowed. The Court of Appeal ordered the child’s return to Australia. Lord Justice McFarlane and Lord Justice Longmore agreed with Lord Justice Thorpe.
2. Effect of Re E. The decision in Re E, [2011] UKSC 27, was a restatement, not an evolution, of the law under the Convention. It confirmed that the exceptions to return are welfare-based and require no judicial gloss. It did not lower the threshold for an Article 13(b) defence or require courts to determine preliminary issues before conducting the summary hearing. The practice generated by the directions in this case should not prevail.
3. Assessment of risk and protection. A mother’s subjective perception may contribute to a risk, but the court must still assess whether the asserted risks, insecurities and anxieties are realistically and reasonably held in light of the protective package. The judge’s evaluation was deficient because he did not explain why the father’s undertakings concerning contact, approach, communication and confidential accommodation were insufficient. Their enforceability was not in doubt, and corresponding orders could be secured through judicial collaboration in Australia.
4. Relocation proceedings. The anticipated emotional toll of proceedings concerning the child’s future residence should not have elevated the Article 13(b) defence. That dispute properly belonged before the courts of the child’s habitual residence. A parent should not obtain a fundamental change in habitual residence by abducting the child and avoiding the necessary welfare investigation under the Children Act 1989.
5. Disposition. Remittal was unnecessary. In the absence of oral evidence below, and on a correct legal approach, the return order was plainly open to the appellate court. The parties were expected to agree the incidental arrangements for implementing the return.

1. Court of Appeal (Civil Division) — [2011] EWCA Civ 1385 (2 December 2011): allowed the father’s appeal and ordered the child’s return to Australia.
2. Family Division: Charles J’s judgment of 30 August 2011 refused the father’s application for a return order under the 1980 Hague Abduction Convention.