SP (Father) v EB (Mother) & Anor (Rev 1)

Proceedings under the Hague Convention on the International Aspects of Child Abduction 1980 have the limited purpose of securing a prompt return so that the court of habitual residence can decide the child’s long-term future. The Article 13 exceptions must be assessed by reference to that interim purpose. Where a mature child has established a new life, including an educational path, and welfare proceedings in the home state have not begun, an objection may be sound and reasoned, while return may create a grave risk of harm or intolerability. Prolonged delay and the applicant’s inaction may exceptionally establish an Article 20 human-rights defence. In a conflict between the family-life rights of parent and child, the child’s rights prevail.

The father sought the return of his 14-year-old daughter, Kate, from England to Malta under Article 12 of the Hague Convention on the International Aspects of Child Abduction 1980. The mother accepted that the removal was wrongful. Parker J ordered Kate’s return, but the mother’s and Kate’s appeals succeeded because evidence had been gathered impermissibly during a meeting between the judge and Kate. In Re KP [2014] EWCA Civ 554, the Court of Appeal remitted the matter for retrial.

By the retrial, Kate had been in England for about 18 months and the father had not commenced welfare proceedings in Malta. The Article 12 settlement defence was technically unavailable because the retrial concerned the original application. The central issue was whether the delay and the father’s inaction established defences under Articles 13(2), 13(b) or 20.

The father’s application for Kate’s return to Malta was dismissed. The judge also refused permission to appeal.

1. Purpose of the Convention. The 1980 Convention is concerned with prompt return to the state of habitual residence so that its court can determine the child’s long-term future. It does not determine residence, contact or indefinite residence. The Article 13 exceptions must therefore be assessed by reference to the limited period needed for the home court to act and impose safeguards. The approach in B v B [2014] EWHC 1804 (Fam) was followed.
2. Article 13(2). Kate was of sufficient age and maturity. Her objection was to return for the limited Convention purpose, rather than merely to a permanent move. It was sound, reasoned and mature because the father had not begun welfare proceedings in Malta and return might last many months, disrupting her established life and education. The judge regarded the three-stage analysis mentioned in Re T [2000] 2 FLR 192 as potentially over-intellectualising the exercise.
3. Article 13(b). A short, finite return would not normally create a grave risk of harm or intolerability. In the circumstances of this case, however, Kate had established a new life and was prospering educationally after a prolonged period in England, while the welfare case that would determine her future had not begun. Return was therefore likely to be intolerable and seriously harmful. The undertakings offered by the father were not adequate arrangements under Article 11.4 of B2R.
4. Article 20. Kate’s family life included her direct family, home, friends and education. A prolonged return would substantially disturb that family life. Although the father had a competing family-life interest, the child’s rights prevailed under the principle in Yousef v The Netherlands [2003] 1 FLR 210. The combination of prolonged delay and the father’s total inaction made this an exceptional Article 20 case. Article 20 was available through the Human Rights Act 1998, notwithstanding that the 1985 Act pre-dated it, following Re D [2006] UKHL 51.
5. EU framework and discretion. Articles 11.6–11.8 of B2R permit a subsequent return judgment from the home state to trump a non-return decision based on Article 13, but not one based on Article 3, Article 12 or Article 20. The Article 20 finding therefore prevented that route. The unavailability of the Article 12 settlement defence did not prevent the period of delay and the father’s inaction being considered under the other defences. The judge’s observations about Article 10 jurisdiction, acquiescence and the practical futility of return were matters for the Maltese court and fortified, rather than independently determined, the decision.
6. Permission to appeal. Under FPR 30.3(7), permission required a real prospect of success or another compelling reason. None of the proposed grounds satisfied that threshold. The standard of proof for the Article 20 defence was the balance of probabilities, not a higher quasi-criminal standard, consistently with Re B (Minors) [2008] 3 WLR 1.

1. Court of Appeal: In Re KP [2014] EWCA Civ 554, the mother’s and Kate’s appeals against Parker J’s return order were allowed because the judge had impermissibly gathered evidence during a meeting with Kate. The matter was remitted for retrial.
2. High Court (Family Division): On retrial, Mr Justice Mostyn dismissed the father’s application for return to Malta and later refused permission to appeal.