Re B (Children)

In summary proceedings under the 1980 Child Abduction Convention, oral evidence is exceptional but remains discretionary. Consent under Article 13(a) is a central, binary issue of fact. It is materially different from an Article 13(b) defence. The court must decide whether focused oral evidence is necessary to determine consent fairly in light of the available written material.

For Article 13(b), disputed allegations must be assessed cumulatively. Unless the court can confidently discount a potential grave risk if the allegations are true, it must identify the risk and assess whether protective measures would sufficiently and effectively address it. The assessment must address in concrete terms the children’s situation on return.

The mother appealed against a summary return order requiring her three young children to return to Spain under the 1980 Child Abduction Convention. The Deputy High Court Judge rejected her defences of the father’s consent and grave risk under Article 13(b).

The mother contended that the judge should have heard oral evidence because the parties gave directly conflicting accounts of alleged consent and there was no contemporaneous documentary evidence on that issue. She also contended that the judge had inadequately assessed the risks arising from alleged abuse, immigration status, financial insecurity, possible care proceedings and separation from her.

The central issues were whether oral evidence was necessary for a fair determination of consent and whether the Article 13(b) analysis properly evaluated the alleged risks and protective measures.

1. Appeal allowed. The return order could not stand. The case was remitted for a rehearing before a Family Division judge.

2. The judge erred in refusing oral evidence on consent. There is no right to such evidence and it should be admitted sparingly in Convention proceedings. However, consent is a binary factual issue closely connected to whether a removal was wrongful. It is not equivalent to an Article 13(b) defence, for which the court can assess disputed allegations at their highest. The observations in ES v LS [2021] EWHC 2758 (Fam) and Re IK (A Child) [2022] EWHC 396 (Fam) to the contrary were unsound and should not be followed.

   Here, neither parent relied on documentary communications addressing consent. Their conflicting accounts of conversations could not fairly be resolved from later accounts given to social workers. Short, focused oral evidence was necessary. Any permitted oral evidence must remain strictly confined and cannot cure deficiencies in a party’s written case.

3. The judge also erred in the Article 13(b) analysis. Applying Re E [2012] 1 AC 144, the court must consider whether the allegations, if true, would create a grave risk and then whether effective measures would protect the children. The steps may be considered compendiously, but only where that does not obscure either the nature of the potential risk or the adequacy of protection.

4. The allegations had to be considered cumulatively. The judge instead considered them separately and failed properly to assess, in concrete terms, the children’s prospective circumstances in Spain. He relied on unsupported matters concerning alleged abuse and the father’s protective role. He also made unjustified assumptions about residence rights, state support and financial provision. The possible inability of the mother to meet the children’s basic needs, and consequent separation from their primary carer, required careful analysis.

• Court of Appeal (Civil Division) Allowed the mother’s appeal, set aside the summary return decision, and remitted the matter for rehearing: [2022] EWCA Civ 1171.
• High Court of Justice, Family Division Mr G Kingscote QC, sitting as a Deputy High Court Judge, made a return order under the 1980 Child Abduction Convention on 9 June 2022 after rejecting the mother’s consent and Article 13(b) defences.