E (Children) (FC)

The Hague Convention on the Civil Aspects of International Child Abduction 1980 is designed around the best interests of children generally and of each child concerned. Those interests are a primary, but not paramount, consideration. Faithful application of its summary return scheme will ordinarily satisfy article 3(1) of the United Nations Convention on the Rights of the Child 1989 and article 8 of the European Convention on Human Rights.

Article 13b requires no narrow construction or additional gloss. The opponent of return must establish, on the balance of probabilities, a grave risk of child-specific harm or intolerability. Where disputed abuse allegations cannot be tried summarily, the court should ask whether they would create the required risk if true and, if so, whether effective protective measures can sufficiently address it.

A mother wrongfully removed two young daughters from Norway to England. She resisted their return under article 13b of the Hague Convention on the Civil Aspects of International Child Abduction 1980, relying on alleged domestic abuse and psychiatric evidence that an enforced return might cause self-harm or suicidality, with consequential harm to the children.

Pauffley J found that available therapeutic, family, legal and practical protections sufficiently addressed the risk and ordered the children’s return. The Court of Appeal, [2011] EWCA Civ 361, rejected the argument that Neulinger and Shuruk v Switzerland required a different approach.

The Supreme Court considered the relationship between the Hague Convention, article 3(1) of the United Nations Convention on the Rights of the Child 1989 and article 8 of the European Convention on Human Rights. It also determined the proper interpretation and application of article 13b, including the treatment of disputed domestic-abuse allegations and protective measures.

1. Appeal dismissed unanimously. Lady Hale and Lord Wilson delivered the judgment of the Court. The return order remained effective.
2. The Hague Convention on the Civil Aspects of International Child Abduction 1980 and Council Regulation (EC) No 2201/2003 were devised with the best interests of children generally, and of each individual child concerned, as a primary consideration. The Convention proceeds on rebuttable assumptions that prompt restoration to the child’s habitual residence will serve those interests and permit any welfare dispute to be determined in the better-placed forum. The paramountcy rule in section 1(1) of the Children Act 1989 did not apply because Hague proceedings determine where the child should be while upbringing is decided, rather than determining upbringing itself.
3. Article 8 of the European Convention on Human Rights must be interpreted alongside the Hague Convention and the United Nations Convention on the Rights of the Child 1989. Neulinger and Shuruk v Switzerland, [2011] 1 FLR 122, did not require abandonment of the Convention’s swift, summary process or a full welfare inquiry. A court must examine the particular child’s circumstances and relevant exceptions, without acting automatically or mechanically. The violation in Neulinger arose from later delay and changed circumstances, rather than the Swiss court’s original application of the Convention. Proper application of the Convention will only exceptionally infringe Convention rights.
4. Article 13b requires no additional gloss. Although its exceptions must be restrictively applied, its plain language need not be narrowly construed. The opponent of return bears the burden of proof on the ordinary balance of probabilities. The risk must be grave, rather than merely real. The seriousness of the prospective harm informs whether the risk is grave.
5. Physical or psychological harm takes colour from the alternative of an intolerable situation. The question is whether the particular child, in the particular circumstances, should reasonably be expected to tolerate the situation. Harm may include the effects of witnessing abuse of a parent. Its source is immaterial, including where a parent’s subjective perception causes mental illness with intolerable consequences for the child.
6. The inquiry is forward-looking and must account for effective protective measures in the state of habitual residence. Where disputed abuse allegations cannot be tried summarily, the court should first ask whether they would establish a grave risk if true. If so, it should determine how the child can be protected. The clearer the need for protection, the more effective the measures must be. Here the judge had carefully assessed the recommended measures and was entitled to find them sufficient.
7. The return also engaged the older half-sister’s article 8 rights and her interests under article 3(1), although she was not subject to the proceedings. Any interference was justified by the rights and interests of the younger children. Her joinder under rule 6.5(e) of the Family Proceedings Rules 1991 was a permissible exercise of the trial judge’s assessment of sufficient interest.

1. United Kingdom Supreme Court — In E (Children) (FC), [2011] UKSC 27, the court unanimously dismissed the mother’s appeal and maintained the order for the children’s return to Norway.
2. Court of Appeal — In [2011] EWCA Civ 361, the court held that the Strasbourg authorities required no change to the established Hague Convention approach and upheld the return order.
3. High Court — Pauffley J found that the available protective arrangements sufficiently addressed the alleged risk to the mother’s mental health and the consequential risk to the children. She ordered their return to Norway.