EM v BK

Under the 1980 Hague Convention, a prompt-return obligation following wrongful removal remains subject to article 13, but the discretion is not governed by the paramountcy principle in section 1(1) of the Children Act 1989. A responsive custody order made by the courts of the state of habitual residence should generally be given effect unless it was obtained on a false basis, after a major unexpected change of circumstances, or by procedurally unfair means. An article 13(b) defence requires concrete proof of a grave risk in the situation the children would actually face. A child’s objection is construed literally, but its weight in the discretionary stage depends on the circumstances, including manipulation or alienation. Protective undertakings may include short-term financial support for a primary carer.

The mother removed the parties’ two children from Italy to England while proceedings and an appeal concerning their care were pending in Rome. The Rome Appeal Court subsequently made an urgent responsive order granting the father exclusive interim custody and directing that the children be placed with him in Italy.

The father applied in England for their return under the 1980 Hague Convention. The mother relied on article 13(b), alleging a grave risk of harm or an intolerable situation, and on the children’s objections to return. She accepted that Italy had substantive jurisdiction over the children’s arrangements. The central issues were the effect of the Rome judgment, the article 13 defences, and the exercise of any resulting discretion.

1. Return obligation and responsive order. The removal was wrongful because the children were habitually resident in Italy and the father’s custody rights were being exercised. Article 12 therefore required their prompt return, subject to article 13. The discretion under article 13 was at large, though informed by the Convention’s objects, the children’s welfare in a general sense, and any responsive order made by the home-state court.
2. A responsive order was admissible and entitled to due weight, but was not automatically decisive. In exercising the article 13 discretion, the court should generally give effect to such an order unless it was made on a false basis, following a major unexpected change of circumstances, or by procedurally unfair means. This approach was consistent with the recognition provisions of Council Regulation (EC) No 2201/2003, the Family Procedure Rules and the principle of comity.
3. Article 13(b). The court had to examine concretely the situation the children would face on return. Temporary disturbance, the mother’s alleged inability to return, and the asserted risk of her arrest did not establish a grave risk of physical or psychological harm or an intolerable situation. The defence therefore failed.
4. Children’s objections. The children clearly objected to return and were of sufficient age and maturity for their views to be taken into account. Their reasons were relevant at the discretionary stage. The court nevertheless placed little weight on the objections because the evidence showed that they were substantially rooted in manipulation and alienation by the mother. The Convention’s objects and the Rome judgment carried greater weight.
5. The discretion was therefore exercised in favour of return. The children were ordered to return to Italy by 14 February 2021. The father’s undertakings to fund the mother’s travel and short-term accommodation, and not to initiate or support future criminal proceedings subject to lawful conduct, were accepted as urgent protective measures under article 11 of the 1996 Hague Convention. The return order did not depend on those undertakings.