W (Children) (Abduction: Striking Out)

Applications under the Hague Convention should generally be pursued through the Convention’s substantive defences rather than by striking out the return application. Delay may be relevant to the settlement defence under Article 12, and where appropriate to acquiescence, but does not ordinarily justify striking out a summary application. Striking out is appropriate only in exceptional circumstances. It is also generally inappropriate to obtain expert psychological evidence to support a defence to summary return, absent a particular evidential basis such as relevant medical treatment or history.

The father applied under the Hague Convention and Brussels II Revised for the return to Spain of two children who had been brought to England in July 2013. The mother relied on settlement, acquiescence, objection and grave risk under Articles 12 and 13. At a pre-trial review, she applied to strike out the father’s application because of the delay in issuing it, and sought a psychological assessment of herself in support of the Article 13(b) defence.

The court considered whether the application should be struck out before the substantive hearing and whether expert psychological evidence concerning the mother should be obtained.

1. The application to strike out was refused. The court regarded Re G (Abduction: Striking Out Application) [1995] 2 FLR 410 as an exceptional case. The fact that no other Hague application had been struck out in the following twenty years supported the conclusion that striking out was not generally appropriate.

2. The Convention scheme expressly accommodates delay in the substantive analysis. Article 12 adopts a different approach where the children have been in the requested state for more than twelve months, allowing delay to be considered in determining whether the children are settled. The matters relied on by the mother were therefore properly matters for the settlement defence and, if appropriate, acquiescence.

3. The court did not prejudge the strength of the Article 12.2 or Article 13(b) defences. Their merits were for determination at the substantive hearing.

4. The application for a psychological assessment of the mother was also refused. It was generally inappropriate to obtain expert psychological evidence in support of a case against summary return under the Convention. The absence of a medical history of treatment for depression, anxiety or another condition resulting from the father’s alleged conduct provided no sufficient basis for directing the assessment. Relevant existing medical evidence, if available, could be adduced.

5. The mother’s applications were refused.