B v B

Under the Hague Convention on the Civil Aspects of International Child Abduction 1980, a child wrongfully removed from the state of habitual residence should be returned promptly so that its courts can determine the child’s long-term future. The exceptions must be construed narrowly and in light of that limited purpose.

Consent under article 13(a) must be established by clear and unequivocal evidence. A child’s objection must be sufficiently mature, reasoned and directed to return for the purpose of adjudication, rather than merely expressing a preference about country or carer. Grave risk under article 13(b) concerns the interim period before the home court determines welfare. Within the European regime, that defence is unavailable where adequate protective arrangements secure the child after return.

A Lithuanian father applied under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for the summary return of his nine-year-old daughter. The Lithuanian courts had placed the child in her mother’s custody and granted the father access. Lithuanian legal evidence established that the father’s permission was required before the child could be taken abroad for permanent residence.

The mother had brought the child to England to obtain employment. She opposed return on the grounds that the father had consented, the child objected, and return would expose the child to an intolerable risk of harm. The central questions were whether any article 13 exception was established and whether protective measures could address the alleged risk pending adjudication in Lithuania.

1. The application was granted. The child had been removed from Lithuania in breach of the father’s rights of custody. None of the relied-upon exceptions to the duty of prompt return was available. The mother was therefore ordered to return the child to Lithuania by 10 June 2014 unless the Lithuanian court meanwhile permitted them to remain in England.

2. The evidence did not establish consent under article 13(a) of the Hague Convention on the Civil Aspects of International Child Abduction 1980. Consent must be proved by clear and unequivocal evidence. Written consent, an admission, or a corroborated oral agreement may satisfy that standard. The parties’ conflicting accounts did not do so. The father’s prompt complaint and return application, together with the mother’s secrecy and failure to provide contact details, were inconsistent with consent.

3. The child-objections exception did not arise. The relevant objection is to return to the state of habitual residence for the limited purpose and period required for its courts to determine welfare. It is distinct from an objection to living in that country generally or to being placed with the left-behind parent. The child’s responses lacked depth, detail and balance, and she did not understand the required distinction. Her views therefore fell below the threshold of a sufficiently mature objection.

4. The alleged grave risk had to be assessed during the interim period before the Lithuanian court determined the child’s future, rather than by reference to long-term welfare. Article 11(4) of Brussels II Revised rendered the defence unavailable where adequate arrangements secured the child’s protection after return.

5. Protective measures could be imposed under article 11 of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children 1996 and recognised under article 23. Pending a Lithuanian order, the child was to remain with the mother; the father was to have no contact, was not to molest the mother, and was not to approach within 100 metres of her flat. The mother was prohibited from removing the child from Lithuania.

not stated in the judgment.