T (Abduction: Protective Measures: Agreement to Return), Re

In a return application under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a court cannot treat negotiations as a concluded agreement where the parties remain in dispute about a fundamental element of the return package. Where an article 13(b) case is raised, protective measures must be effective in the requesting state and must address the asserted grave risk. The court must examine the child’s prospective circumstances in concrete terms.

Undertakings or orders made in England do not suffice unless there is evidence that they will provide effective protection abroad. Protective measures must be distinguished from non-essential soft-landing arrangements. A taking parent who withdraws an intention to return with the child before a final order is made requires an assessment of the changed position and its effect on the child.

The father applied for the return of T from England to Texas under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The mother accepted that T had been wrongfully retained but relied on alleged domestic abuse, her mental health, and the consequences of a Texas order as raising an article 13(b) issue.

At the final hearing, the parties negotiated proposed financial and practical arrangements. The mother maintained that she would return only if effective protective measures were first put in place in Texas. The judge nevertheless held that an agreement had been reached, approved a purported consent return order, and dismissed the mother’s subsequent application concerning her mental health.

The mother appealed. The central issues were whether there had been a concluded agreement, whether English undertakings provided adequate protection, and how the court should approach a parent’s withdrawal of an intention to return before a final order.

1. Appeal allowed. The two orders approved on 24 August 2023 could not stand. There was no concluded agreement because the parties remained in dispute about a fundamental component of any return: whether the proposed protective measures would be effective and enforceable in Texas.

2. Where article 13(b) is in issue, protective measures must be genuinely protective. The court must assess in concrete terms the circumstances which the child will face on return. It must therefore have sufficient information to decide whether the proposed measures will effectively address the identified risk in the requesting state. English undertakings may be appropriate in some cases, but their value depends on compliance and effective remedies. They must be used cautiously where they cannot be enforced abroad, especially where domestic abuse is alleged.

3. The judge had not analysed the evidence or obtained material about the recognition or enforcement in Texas of the proposed measures. An expressed intention that English undertakings should operate as Texas orders did not provide either the mother or T with protection. The distinction between protective measures and soft-landing provisions was critical: a disagreement only about discrete practical arrangements might have permitted short adjudication and saved an otherwise complete agreement, but this dispute concerned protective measures.

4. Rose [2002] EWCA Civ 208 and Xydhias [1999] 2 All ER 386, concerning financial remedy agreements, had limited application and were materially distinguishable. They did not justify a broad discretion to hold parties to an incomplete agreement in contested Convention proceedings concerning a child.

5. Before a final return order is made, a taking parent’s retraction of an intention to return with the child must be assessed on the changed facts. The court must examine the reasons and evidence for the change, remain alert to tactical conduct, and consider what it means for the child and for any asserted intolerability. The judge wrongly approached the mother’s position as an attempt to set aside a final agreement.

6. The application was to be listed urgently before a Family Division judge for case management directions and a final hearing as soon as practicable.

• Court of Appeal (Civil Division): Allowed the mother’s appeal and set aside the orders treated as having been made by consent.
• High Court of Justice, Family Division: Her Honour Judge Sonia Harris, sitting as a Deputy High Court Judge, treated the parties as having reached an agreement for T’s return to Texas and dismissed the mother’s application for permission to obtain mental-health expert evidence.