GP (A Child)

Under Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction 1980, the court must assess in concrete terms the situation that the particular child will face on return. General considerations of comity, the Convention’s policy of prompt return, and the abducting parent’s misconduct cannot displace that inquiry.

Where a return may leave the child without secure care, accommodation or financial support, or may expose the child to serious psychological harm if the accompanying parent is imprisoned, the court must determine the practical consequences. If the evidence is insufficient, it should be adjourned despite the need for expedition. Once a child-objections gateway is met, the discretionary stage also requires a properly reasoned assessment.

The mother wrongfully removed GP, then aged 11, from Italy to England in February 2016. Italy was GP’s habitual residence and the father held rights of custody. The father sought her summary return under the Hague Convention on the Civil Aspects of International Child Abduction 1980.

Hayden J ordered GP’s return pursuant to Article 12, rejecting the mother’s Article 13(b) case and exercising the child-objections discretion in favour of return: [2017] EWHC 1480 (Fam). The mother appealed. She contended that the judge had failed to assess the consequences of her possible imprisonment in Italy, and the practical provision for GP and herself on return.

The central issue was whether the Article 13(b) exception, and the discretion arising from GP’s objections to return, had been lawfully determined on the available evidence.

1. Appeal allowed. The return order was set aside and the case was remitted to the High Court, before a different judge, for a rehearing of both Article 13 issues.

2. The judge had correctly identified the high threshold in Article 13(b), as explained in In re E (Children) [2011] UKSC 27. But he had not applied that test sufficiently to GP’s particular prospective circumstances. The required inquiry was into what would actually happen on return, including whether the mother would be arrested, how GP would be cared for, and how they would be accommodated, maintained and educated while the Italian court considered welfare and custody.

3. Comity, the Convention’s policy of prompt return, and the mother’s serious misconduct were relevant background considerations. They could not substitute for an evidence-based assessment of whether return created a grave risk of psychological harm or an intolerable situation for this child. The possibility that the mother would serve some or all of her existing prison sentence could not be ignored. Nor was it appropriate to regard the mother’s punishment as a potentially salutary lesson for GP.

4. If the available material did not permit the necessary findings, the hearing should have been adjourned for further evidence. Expedition is important in Convention proceedings, but achieving a just outcome is more important. The deficiencies in the evidence, including the absence of a transcript of the CAFCASS officer’s oral evidence, made a rehearing necessary.

5. GP objected to return and had sufficient age and maturity for her views to be taken into account. The first-instance judge had a discretion, but did not state the factors used to exercise it. That exercise may have been affected by the same deficiencies, so it too had to be reconsidered afresh.

• Court of Appeal (Civil Division): Allowed the mother’s appeal, set aside the return order, and remitted the Article 13 issues for rehearing before a different High Court judge: [2017] EWCA Civ 1677.

• High Court, Family Division: Hayden J ordered GP’s return to Italy under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980, rejecting the Article 13(b) defence and declining to refuse return under the child-objections limb: [2017] EWHC 1480 (Fam).