ES v OS

In an application for the return of children under the Hague Convention, an Article 13(b) defence must be assessed holistically. The court must consider the primary facts alongside any proposed protective measures and the extent to which those measures can safely be relied upon. Where a parent’s past conduct gives rise to serious concerns about compliance with undertakings, the court may require that parent’s personal attendance before relying on a promise or undertaking. An adjournment may be necessary where the proposed safeguards have not been properly developed, tested or answered. No summary return should be ordered before the relevant objections, risks and protective measures have received intense consideration.

The applicant sought the return of two children to Lithuania under the Hague Convention after their removal to England by the respondent, their mother. The mother had previously removed the children to England, following which an order for return was made on undertakings given by the father. The father later breached those undertakings and Lithuanian custody orders, and the children were removed to England again in 2017.

The mother relied on three proposed defences: that the father was not exercising custody rights, that the elder child objected to return, and that return would expose the children to a grave risk of harm or an intolerable situation. The hearing was adjourned because the protective undertakings had not been adequately addressed, the father was absent, and his response could not be obtained through an interpreter.

1. The hearing was adjourned. The court determined no substantive issue and made directions for a further hearing before another judge. The guardian’s oral evidence was to be transcribed and preserved for that hearing.
2. In considering the Article 13(b) defence, the court must assess the primary facts and circumstances together with any protective measures proposed or capable of being put in place. The issues cannot properly be compartmentalised. The court must undertake a holistic assessment, including whether proposed undertakings can properly be relied upon.
3. The father’s proposed undertakings were patently inadequate because they made no provision for the accommodation or support of the mother and children on return. The mother’s proposed protective measures had only just been formulated, and the father’s instructions or reaction were unknown.
4. In the particular circumstances, including the father’s alleged flagrant breach of earlier undertakings and Lithuanian court orders, the court would not rely on any undertaking from him unless he personally attended court. The absence of a Lithuanian-speaking interpreter and uncertainty about the earlier order and undertakings reinforced the need for personal attendance.
5. The court expressly stated that it had not resolved whether the father was exercising custody rights, whether the elder child objected to return, or whether either child faced a grave risk which could not be ameliorated by protective measures. There could be no summary return on the facts then before the court without, at the very least, the father’s personal attendance. Personal attendance would not itself determine the outcome.