C (Children) (Abduction: Article 13 (B))

An Article 13(b) defence under the Hague Child Abduction Convention 1980 requires a prospective assessment of the children’s circumstances following return. The court must evaluate the nature and gravity of the alleged risk, the evidence as a whole and the protection available. The summary procedure permits careful evaluation of disputed allegations; the court need not assume their truth where the evidence enables it confidently to discount the alleged risk.

Where parental anxiety is relied on, the evidence must support the alleged harmful consequences for the children following return. Existing distress alone does not establish those consequences. A conclusion that protective measures would be insufficient requires adequate reasoning about their effectiveness in the anticipated circumstances.

The father sought the return to South Africa of his two children, aged six and four, under the Hague Child Abduction Convention 1980. The children had lived there with both parents before the family travelled to England. Following an argument, the father returned to South Africa alone. The mother accepted that she had wrongfully retained the children in England.

The mother opposed return under Article 13(b). She alleged domestic violence and abuse and maintained that returning would damage her psychological health, exposing the children to harm or an intolerable situation. She abandoned her reliance on the elder child’s objections. The father disputed her allegations and proposed protective undertakings, including vacating the family home and providing financial support.

HHJ Bellamy, sitting as a Deputy High Court Judge, dismissed the return application on 21 September 2018 without hearing oral evidence. The father appealed, challenging the evidential basis of the decision and the assessment of the children’s circumstances and proposed protection following return.

1. The appeal was unanimously allowed. The order dismissing the return application was set aside. Moylan LJ’s reasons were expressly adopted by David Richards and Lewison LJJ. The application required an urgent rehearing because the Court of Appeal could not determine whether return should be ordered.

2. The summary nature of Hague Convention proceedings ordinarily limits oral evidence and findings on disputed allegations. It nevertheless permits careful evaluation of the credibility and substance of the written evidence. The pragmatic approach in Re E (Children)(Abduction: Custody Appeal) forms part of the court’s general reasoning. A judge need not assume allegations are true where the evidence enables the alleged Article 13(b) risk confidently to be discounted.

3. The inquiry concerns the future situation following return. Although exposure to parental abuse can harm children, the judge had failed adequately to analyse the nature and degree of the risk of future domestic violence. He also failed to explain why the father’s proposed measures would not sufficiently ameliorate that risk. The assessment required consideration of all the evidence, including the Cafcass report and the fact that the parents would live separately. Those gaps could not be supplied by inference or repaired on appeal.

4. The evidence also failed to support the conclusion that return would be potentially psychologically disabling for the mother. The GP’s concerns did not address the potential psychological consequences of return and expressly identified no impairment of her parenting ability. Her demeanour and the other evidence did not establish that her anxieties would destabilise parenting sufficiently to make the children’s situation intolerable or cause psychological harm. The court applied the approach in Re S (A Child)(Abduction: Rights of Custody).

5. Protective measures encompass anything capable of addressing the alleged risk, including access to courts and other services in the home state. In additional guidance, the court explained that undertakings must be assessed for effectiveness, including likely compliance and remedies for breach. Enforceability is one element of that assessment. Questions about proposed protection and foreign enforceability should be raised early, with information obtained expeditiously where required.

6. Lewison LJ separately questioned whether assuming disputed allegations to be true could be reconciled with the ordinary civil burden of proof. He also identified a possible reversal of that burden when protective arrangements must be established under Brussels II bis. These observations did not qualify his agreement with Moylan LJ. He acknowledged that the Supreme Court’s approach remained binding.

• Court of Appeal (Civil Division): In [2018] EWCA Civ 2834 , unanimously allowed the father’s appeal, set aside the dismissal and remitted the return application for an urgent rehearing.
• High Court, Family Division: HHJ Bellamy, sitting as a Deputy High Court Judge, heard the application on 20 September 2018 and dismissed it on 21 September 2018, concluding that the mother had established her Article 13(b) defence.