M (Children)

In an application for summary return under the Convention on Civil Aspects of International Child Abduction 1980, an Article 13(b) court should assess grave risk on the assumption that the relevant allegations are true. The focus is the children’s return to their country of habitual residence, not necessarily to the alleged abuser. The court must consider whether practical and enforceable protective measures can address the risk. Only if those measures are inadequate should disputed factual allegations be resolved. Where adequate safeguards can be secured, return may be ordered conditionally, including by requiring accommodation, financial support and protective orders.

The father sought the summary return of two children to the United States, their country of habitual residence, after the mother brought them to the United Kingdom for a holiday and did not return them. The mother resisted return under Article 13(b), relying on allegations of domestic abuse and the children’s exposure to conflict. Russell J refused return, finding the father’s proposed protective measures inadequate: [2016] EWHC 1282 (Fam). The father appealed, challenging the assessment of the safeguards and the failure to evaluate the disputed allegations if the safeguards were inadequate. The central issue was whether return could properly be ordered subject to enforceable protective conditions.

The appeal was allowed. The refusal of summary return was set aside, and the children’s immediate return to the United States was directed subject to specified safeguards.

1. The Court of Appeal applied the established Article 13(b) approach. The mother bore the burden of establishing the exception. The court had to consider the children’s return to their country of habitual residence, proceed on the basis that the relevant allegations were true, and assess proposed protective measures before attempting to resolve disputed factual issues: [2011] UKSC 27 (see paras [7] and [13]).
2. Russell J was entitled to examine the security of the proposed accommodation, financial support, protective orders and their enforcement. The Cafcass report could properly inform the assessment of the children’s needs. However, the judge’s treatment of the report risked suggesting adverse factual conclusions reached without evidence and appeared to merge the assessment of protective measures with the later fact-finding stage (paras [15]-[21]).
3. The decisive error concerned the efficacy of the safeguards. There was no proper basis for doubting the ability of the United States courts or police to enforce protective measures or investigate welfare issues. The New Jersey attorney’s letter indicated that a consent order could incorporate the father’s undertakings and could be made before the return. Russell J’s interpretation of that material was confused and inaccurate (paras [22]-[23]).
4. Because the Court of Appeal had the same facility as the first-instance court to assess the available information, it could direct a conditional return while respecting the usual appellate restraint: [2012] UKSC 10 (paras [2] and [24]). The return was conditional on evidence that a consent order had been entered in the Superior Court of New Jersey and that the landlord consented to assignment or subletting of the tenancy, or to the mother’s exclusive occupation. The protective terms, maintenance arrangements and interim contact provisions required further negotiation before the first welfare hearing (paras [24]-[25]).

• Court of Appeal (Civil Division): Appeal allowed. The children’s return to the United States was directed subject to evidence of specified protective arrangements: [2016] EWCA Civ 942.
• High Court of Justice, Family Division: Russell J refused the father’s application for summary return on the basis that the proposed protective measures were inadequate: [2016] EWHC 1282 (Fam).