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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AT v SS  EWHC 2703 (Fam) (29 September 2015)
Cite as:  EWHC 2703 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
|- and -
Ms Jaqueline Renton (instructed by Duncan Lewis) for the Respondent
Hearing dates: 11 September 2015
Crown Copyright ©
MR JUSTICE MACDONALD:
i) Upon the return of S to the Netherlands in the care of his mother the CCPB intends to apply for a family supervision order in advance of the return for the purpose of re-instating contact between S and his father immediately on the arrival of S in Holland;
ii) If the mother refuses to return to Netherlands with S, the CCPB does not consider that it would be in the best interests of S to be placed with the father in the first instance given the history of this matter as outlined above and in circumstances where S has had no contact with his father since February 2014;
iii) Were S to be returned to the Netherlands without his mother the CCPB will undertake an assessment before his return in order to determine where S would be best placed pending the outcome of the substantive welfare proceedings in Holland. The CCPB will assess both the viability of kinship placement and a placement in foster care. The CCPB has indicated that this assessment will take approximately six weeks to complete. The CCPB has also indicated (after further clarification was sought) that a kinship placement for S in the interim is preferable but may not be available in the short term depending on the outcome of its assessment;
iv) Were S to be returned to the Netherlands without his mother the CCPB does not have the capacity to collect S from England but will enquire of the Youth Care Agency whether it has the means to collect S and accompany him to the Netherlands.
i) There is no need for Art 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of Art 13 are quite plain and need no further elaboration or gloss.
ii) The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process.
iii) The risk to the child must be 'grave'. It is not enough for the risk to be 'real'. It must have reached such a level of seriousness that it can be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two.
iv) The words 'physical or psychological harm' are not qualified but do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation'. 'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'.
v) Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home (where, as in this case, Art 11(4) of BIIa applies, the court cannot refuse to return a child on the basis of Art 13(b) of the Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return). Where the risk is serious enough the court will be concerned not only with the child's immediate future because the need for protection may persist.
vi) Where the defence under Art 13(b) is said to be based on the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child's situation would become intolerable the court will look very critically at such an assertion and will, among other things, ask if it can be dispelled. However, in principle, such anxieties can found the defence under Art 13(b).
"The grave risk of harm arises not from the return of the child, but from the refusal of the mother to accompany him. The Convention does not require the court in this country to consider the welfare of he child as paramount, but only to be satisfied as the grave risk of harm. I am not satisfied that the child would be placed in an intolerable situation if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the Convention because of the refusal of the mother to return for her own reasons, not for the sake of the child. Is a parent to create the psychological situation, and then rely on it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parents who abducted him, then it would be relied on by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of the child who should be living in his own country and deny him contact with his other parent. As Balcombe LJ said in Re E (A Minor)(Abduction)  1 FLR 135, 142:
'…the whole purpose of the Convention is…to ensure that parties do not gain adventitious advantage by either removing a child wrongfully from the country of its usual residence, or having taken the child, with the agreement of the other party who has custodial rights, to another jurisdiction, then wrongfully retain the child.'
If this mother will not accompany the child, despite the knowledge that his rightful place is in New South Wales, the, on the facts before the court, I am not satisfied that Art 13(b) applies and, in my judgment, the child should return to his father."
"In the light of these passages we must make clear the effect of what this court said in Re E (Children) (Abduction: Custody Appeal). The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, and then the child should not be returned. It matters not whether the mother's anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned."
"The principle that it would be wrong to allow the abducting parent to rely upon adverse conditions brought about by a situation which she herself has created by her own conduct is born of the proposition that it would drive a coach and horses through the 1985 Act if that were not accepted as the broad and instinctive approach to a defence raised under Article 13(b) of the Convention. However, it is not a principle articulated in the Convention or the Act and should not be applied to the effective exclusion of the very defence itself, which is in terms directed to the question of the risk of harm to the child and not the wrongful conduct of the abducting parent. By reason of the provisions of Articles 3 and 12, such wrongful conduct is a 'given' in the context of which the defence is nonetheless made available if its constituents can be established."
i) Not to prosecute nor pursue any civil or criminal claim against the mother in relation to the wrongful removal of S from the Netherlands;
ii) Not to seek to separate S from the mother save for any agreed or court ordered contact pending the determination of the that issue by the Dutch courts;
iii) To pay for the single air fare for the mother and S to Holland;
iv) Not to attend the airport, or any other address which the mother may be present at during her stay in the Netherlands to facilitate S's return;
v) Any other undertakings which the court considers appropriate in order to safeguard the position of S in Holland pending the first hearing before a Dutch court.
"We have also had to consider Art 13, with its reference to "psychological harm". I would only add that in a situation in which it is necessary to consider operating the machinery of the Convention, some psychological harm to the child is inherent, whether the child is or is not returned. This is, I think, recognised by the words "or otherwise place the child in an intolerable situation" which cast considerable light on the severe degree of psychological harm which the Convention has in mind. It will be the concern of the court of the State to which the child is to be returned to minimise or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those courts in the circumstances of the case, the courts of this country should assume that this will be done. Save in an exceptional case, our concern, i.e. the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country, Australia in this case, can resume their normal role in relation to the child."