RB v DB

Where a child has been wrongfully removed between EU Member States, or between states subscribing to the 1996 Hague Convention, the 1980 Hague Convention operates subject to substantial modification. Effective protective measures made under Article 11 of the 1996 Convention may satisfy Article 11.4 of Brussels II Revised, removing the Article 13(b) grave-risk defence. Such measures may also overcome a child-objections defence in exceptional circumstances. The court must assess objections by reference to the limited purpose of return proceedings: enabling the home-country court to determine the child’s long-term future. Where effective protective measures can be made, the available Convention defences may substantially, and in an appropriate case almost entirely, disappear.

RB applied for the summary return of her daughters, D and B, to Austria under the 1980 Hague Convention, incorporated into domestic law by the Civil Abduction and Custody Act 1985. The children had been habitually resident in Austria after the family relocated there, but DB removed them covertly to England.

The case concerned whether the father could rely on Article 13(b), alleging grave risk of physical or psychological harm or an intolerable situation, and whether the children’s expressed objections prevented return. Austria and the United Kingdom were EU Member States and parties to the 1996 Hague Convention. The central issue was whether the court could make protective measures under Article 11 of the 1996 Convention which would satisfy Article 11.4 of Brussels II Revised and affect the available Convention defences.

1. Return ordered. The children had been wrongfully removed from Austria, their country of habitual residence. Their return was ordered by midnight on 25 June 2015, subject to the protective measures specified in the judgment.
2. The ordinary principles governing a case under the 1980 Hague Convention were substantially modified where the home and away countries were both EU Member States or subscribers to the 1996 Hague Convention. Return proceedings are concerned only with the child’s prompt return for the limited period necessary for the home-country court to determine the child’s long-term future.
3. Article 11 of the 1996 Hague Convention enabled the court to make urgent protective measures which would be recognised by operation of law in Austria under Article 23. Those measures satisfied the requirement in Article 11.4 of Brussels II Revised for adequate arrangements securing the children’s protection after return.
4. Consequently, the Article 13(b) defence was unavailable. The protective measures also overreached any valid child-objections defence under Article 13 of the 1980 Convention, save in exceptional circumstances which were difficult to envisage.
5. Independently, the children’s objections were not valid Convention objections. They did not address the limited question of return for determination of their future by the Austrian court. The court also concluded that their views about Austrian protective services were likely to have been inculcated by the father.
6. The protective measures included the father’s continued care of the children pending determination by the Austrian Family Court, restrictions on removal and contact, accommodation and financial arrangements, mutual non-violence provisions, and cooperation with Austrian welfare and child-protection authorities. The measures were provisional and urgent; the court made no firm findings of fact.
7. Measures falling within Regulation (EU) No. 606/2013 would also be recognised and enforced throughout the European Union without a declaration of enforceability. The mother was permitted supervised contact with the children in England before their return.