A (Child Abduction: Article 13b)

In an Article 13(b) return case involving alleged domestic abuse and a vulnerable primary carer, the court must assess whether return would probably cause such deterioration in the carer’s mental health that a breakdown was likely, leaving the child in an intolerable situation. Protective measures, available services and the likely duration of proceedings in the requested state are relevant. A first-instance evaluation should not be disturbed merely because an appellate court might weigh the evidence differently, where the judge directed himself correctly and carefully evaluated the evidence. Credible fresh evidence that could not have been obtained at trial and would probably influence the result should be admitted. If it concerns the central fact-sensitive issue, the return order may be set aside and the Convention application remitted for rehearing.

The father applied under Article 13(b) of the 1980 Hague Convention on the Civil Aspects of International Child Abduction for the summary return of J, aged three, from England to Virginia. The mother alleged sustained domestic abuse, coercive control and isolation. She relied on evidence that return would worsen her depression and anxiety and undermine her ability to care for J.

The deputy High Court judge found that the allegations were capable of engaging Article 13(b), but held that the exception was not established in light of protective measures, available services and undertakings. He ordered J’s return following approval of a consent custody order by the Virginia court. On appeal, the mother challenged that assessment and sought admission of updated medical and support evidence. The central issues were whether the fresh evidence should be admitted and whether, in light of all the evidence, return was likely to cause a mental-health breakdown making J’s situation intolerable.

1. Fresh evidence. Applying the considerations in Ladd v Marshall [1954] 1 WLR 1489, the updated GP evidence was credible, could not have been obtained at trial and was capable of materially influencing the result. It was admitted because it portrayed a markedly more severe situation than that previously before the judge. [25]-[26]
2. Article 13(b) assessment and appellate restraint. The court identified several fixed points: the removal was wrongful; the allegations were capable of engaging Article 13(b); extensive protective and support measures were available in Virginia; and a breakdown in the mother’s mental health could place J in an intolerable situation. The crucial question on the original evidence was whether return was likely to cause such deterioration that a breakdown would occur. The judge was entitled to reach his conclusion on that evidence. The decision fell within the appellate restraint described in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80. [29]-[31]
3. Relevant evaluation. The court considered that the mother’s reconciliation with the father could not properly be treated as a counter-indicator of abuse. It also questioned the suggestion that return might provide respite from family pressures where the mother relied on family support in England. The likely duration of proceedings in Virginia was also relevant. [30]
4. Disposition. The fresh evidence went to the heart of the fact-sensitive issue and showed escalation in self-harming behaviour. The return order therefore could not stand. The better course was to set it aside and remit the father’s Convention summons to the deputy High Court judge for an expedited rehearing. The weight and implications of the further evidence were matters for that judge, potentially with supplementary psychiatric evidence. The appeal was allowed only because of the further evidence. [32]-[34]

1. Court of Appeal (Civil Division): [2021] EWCA Civ 328. The appeal was allowed because of fresh evidence concerning the mother’s mental health and family support. The return order was set aside and the Convention summons was remitted for an expedited rehearing.
2. High Court of Justice (Family Division): On 9 December 2020, the deputy High Court judge ordered J’s summary return to the United States after finding that the Article 13(b) exception had not been established, subject to protective measures and undertakings.