MA v RA

In proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, where allegations of abuse create a disputed Article 13(b) defence, the court should consider whether the alleged facts, if true, would create a grave risk and, if so, whether effective protective measures can address that risk. Where return is contemplated, protective arrangements may need to be secured and enforceable through proceedings in the receiving country before return. The court may adjourn rather than determine the defence where further evidence and negotiated safeguards are required.

The father sought the summary return to America of the parties’ five-year-old daughter, who had travelled to England with the mother. The mother disputed that the removal or retention was wrongful and relied on Article 13(b), alleging prolonged physical, psychological and emotional abuse. The father denied the allegations, apart from acknowledging a historic drink problem.

The parties also had an eight-year-old son who remained in America. The mother accepted that, if she wished to maintain contact with her son and daughter, she would ultimately need to return to America. The central issue at the hearing was therefore the protective measures and safeguards required before any return could safely and fairly occur.

1. The matter was not finally determined. The judge expressly stated that he was summarising the position and was not deciding or ruling upon the substantive issues. The case was adjourned for a further one-day hearing.
2. In a case involving sharply conflicting allegations of domestic abuse, the court is in the territory identified in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27. The court should consider whether, assuming the allegations to be true, return would expose the child to a grave risk of physical or psychological harm or place her in an intolerable situation. If so, it should consider how the risk could be addressed by protective measures and whether those measures would be effective.
3. The presence of the son in America materially affected the practical and jurisdictional context. The mother had no realistic alternative to returning to America if she wished to see her son and to preserve sibling contact. The appropriate focus was therefore on safeguards for the mother and daughter pending determination of the issues in America.
4. The judge accepted in principle the approach in Re M (Abduction: Hague Convention: Article 13(b)) [2016] EWCA Civ 942: any actual return might require a consent order or equivalent enforceable arrangements in the relevant American court before return. The proposed safeguards required further negotiation and evidence concerning their enforceability, timescales and cost.
5. The case was adjourned to 23 November 2017. The mother was to serve precise proposed terms for return; the father was to respond, address the proposed undertakings, and provide evidence concerning appropriate proceedings in America.

Not stated in the judgment. This was a first-instance hearing in the High Court (Family Division); the judge expressly made no final adjudication.