A (child), Re

An intra-EU application for the return of an allegedly abducted child should ordinarily be determined under the 1980 Hague Convention, as complemented by article 11 of Council Regulation (EC) No 2201/2003. Article 20 should not be used to circumvent that calibrated scheme without a particularly compelling reason.

A court must also give a parent a proper opportunity to answer an application before summarily ordering a child’s return. Without-notice location, passport and collection orders require particularised evidence. A collection order requires clear evidence that the child faces real peril and that removal will cause less harm. Where flight risk is asserted, the court must assess its likelihood, the prospect of evading protective measures and the consequences for the child.

The mother commenced proceedings for the return of a young child to Sweden under the 1980 Hague Convention and Council Regulation (EC) No 2201/2003. MacDonald J made a without-notice collection order, under which the child was removed from the father and placed in local authority care.

At a subsequent hearing intended by the father to be a directions hearing, Mostyn J ordered the child’s return to Sweden as a provisional protective measure under article 20 of the Regulation. The order was stayed pending appeal.

The linked appeals concerned whether the collection order was justified by the evidence and whether the summary return order was procedurally fair and consistent with the relationship between the Convention and the Regulation.

1. Return order: The father’s appeal against Mostyn J’s order was allowed. The process was robust to the point of unfairness. The father had only recently been served, the hearing had not been presented as a final hearing, and the material first seeking immediate return was supplied shortly before the hearing. He had no proper opportunity to prepare, challenge the factual basis for return or address the relevant legal issues. That procedural irregularity was independently sufficient to set the order aside.

2. The mother’s respondent’s notice seeking an immediate final return order under the 1980 Hague Convention was refused. The first-instance judge had not determined whether the father had an arguable Convention defence or heard argument on that question. It was inappropriate for the Court of Appeal to determine the matter summarily.

3. Council Regulation (EC) No 2201/2003 preserves the Convention’s central role in intra-EU child-abduction proceedings. The Regulation takes precedence on matters that it governs, but article 11 complements the Convention and creates a unitary return scheme. A court should therefore require a particularly compelling reason before circumventing a properly constituted Convention application by proceeding instead under article 20. Article 20 supplies no equivalent route map or substantive safeguards. No such reason existed here.

4. Collection order: The appeal against MacDonald J’s order was dismissed. The principles governing without-notice relief apply universally, including in the Family Division and in Convention proceedings. Such an application will normally require an emergency, great urgency or compelling reasons to believe that notice would compromise the child’s welfare or defeat the ends of justice.

5. Every Convention case requires particularised evidence identifying the actual risks and explaining why each location, passport or collection order is needed without notice. A collection order is justified only by clear evidence that, without collection, the child will face real peril and that leaving the child in place would expose the child to greater harm than removal.

6. Where flight risk is asserted, the court must consider the likelihood that removal will be attempted, the likelihood that protective measures can be evaded, and the consequences for the child if they are evaded. Although the evidence before MacDonald J was thin, it entitled him to find an extreme flight risk and to conclude that the harm from temporary separation was outweighed by the harm threatened by further abduction.

• Court of Appeal (Civil Division): In [2016] EWCA Civ 572, allowed the father’s appeal against Mostyn J’s return order, dismissed his appeal against MacDonald J’s collection order and refused the mother’s respondent’s notice.
• High Court, Family Division — Mostyn J: Ordered the child’s return to Sweden as a provisional protective measure under article 20 of Council Regulation (EC) No 2201/2003.
• High Court, Family Division — MacDonald J: Made a without-notice collection order under which the child was removed from the father and placed temporarily in local authority care.