Eliassen & Anor v Eliassen & Anor

In proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, Article 13(b) remains a narrow exception requiring a restrictive assessment of specific risks arising from return. The court must consider the child’s immediate interests, but must not conduct a full welfare inquiry into long-term custody or family arrangements.

Neulinger and Shuruk v Switzerland [2011] 1 F.L.R. 122 did not require a different approach. Its reference to an in-depth examination had to be read alongside the Convention’s objectives, its demand for expedition and the role of the court in the child’s habitual-residence country. Article 20 supplied no separate domestic defence; Convention rights were protected through the Human Rights Act 1998.

Pauffley J ordered the return to Norway of two children under the 1980 Hague Convention. The mother relied on Article 13(b), arguing that return would create a grave risk of psychological harm unless specified protective measures were documented beforehand. The children’s half-sister was joined as a party and advanced related submissions.

The appeals challenged the adequacy of the safeguards and argued that Neulinger and Shuruk v Switzerland required a comprehensive welfare assessment, or an independent human-rights defence equivalent to Article 20. The central issue was the effect of the Strasbourg jurisprudence on the established summary and restrictive approach to Hague return applications.

Appeal dismissed. Thorpe LJ delivered the principal judgment, with which Aikens LJ and Black LJ agreed.

1. The Hague Convention has autonomous meaning. It is interpreted by reference to its text, preamble, objects, the Perez-Vera Explanatory Report and the relevant principles of the Vienna Convention. Domestic courts must not treat it as ordinary domestic legislation.
2. Article 13(b) must be applied restrictively. A return court assesses whether return would expose the child to a specific grave risk of physical or psychological harm or an intolerable situation. The court decides the immediate return question, not the child’s ultimate welfare or custody arrangements, which are ordinarily for the courts of habitual residence.
3. The Strasbourg cases, including Maumousseau and Washington v France ECHR 2007 XIII, supported the Convention’s objectives and the strict interpretation of its exceptions. Neulinger and Shuruk did not require a full welfare inquiry. Its reference to an in-depth examination concerned a fair and sufficiently informed decision on return, undertaken within a prompt summary process. The Strasbourg court’s role was to review compliance with the European Convention on Human Rights, not to give an authoritative interpretation of the Hague Convention.
4. The assessment must be in concreto and may require examination of the circumstances relevant to the alleged risk, including available protective measures. It remains circumscribed by the immediate return decision and must not itself create the delay which the Convention seeks to prevent.
5. Article 20 was not incorporated into domestic law by the 1985 Act. Section 6 of the Human Rights Act 1998 nevertheless required the court to apply the Hague Convention compatibly with Convention rights. That route did not create a separate Article 20 defence.
6. Pauffley J had directed herself correctly, had reliable evidence about the arrangements in Norway and was entitled to reject documentary confirmation as a condition precedent to return. The Article 13(b) defence had no substance. The court dismissed the appeal and proceeded to address arrangements for the delayed return.

• Court of Appeal (Civil Division): On 1 April 2011, the appeal from the return order was dismissed. The court upheld the approach taken to Article 13(b), the protective measures and the effect of the Strasbourg authorities.
• High Court, Family Division: Pauffley J ordered the children’s return to Norway on 29 November 2010 under the 1980 Hague Convention and rejected the Article 13(b) defence.