A recent case involving an American family has hit the pages of Family Law Group LLP (as well as other reputable blogs I am sure) due to the use of Article 13(b) of the 1980 Hague Convention.
This case concerned a mother who took her two children, J aged 5, and D aged 4, to England for a holiday on 22 January 2016 and was due to return on 19 February 2016 but they remained in England. The father applied for a summary return to New Jersey on the 14 March 2016, but the mother raised the defence of Article 13(b).
“the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
In this situation the burden of proof lies with the ‘person, institution or other body’ which opposes the child’s return on the balance of probabilities. Whilst using this defence it is important that the risk to the child be ‘grave’, meaning it must have reached a severe level of seriousness. The words ‘physical or psychological harm’ are not qualified, although the words ‘or place[d] the child in an intolerable situation’ are quantified.
“a situation which this particular child in these particular circumstances should not be expected to tolerate”
In re D (a child)  UKHL 51, at para 
In this case there were allegations of domestic abuse against which started in 2010 but became worse after the birth of D in 2011. The mother stated that J was hit on his legs when he was 1, D was hit in his mouth when he was two moths old, and that she was regularly assaulted; she was slapped, had her hair pulled and twisted and that she was chocked in the children’s presence. There are various allegations in the initial case DM v KM  EWHC 1282 (Fam).
The initial ruling by Russell J to allow the children and mother to stay in England was largely based on the report of a CAFCASS officer who has met with the children. The report stated that the children were aware of the abuse, J had described his Father as ‘angry’ and ‘rough’. There were concerns that emotional and psychological development may be adversely effected by the situation, and in the face of it his views were indicative of a child learning to blame the victim for the abuser’s actions.
“when my mummy stops talking he does not have to yell any more.”
DM v KM  EWHC 1282 (Fam) at para 
As you can imagine there were also concerns for the living arrangements should they return to America.
“Where allegations of domestic abuse are made, the court should first ask whether, if true, there would be the grave risk as defined by Article 13b. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country … Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.”
Re E (Children) (Abduction: Custody Appeal)  UKSC 27
The father denied the allegations, but in order to ameliorate the situation offered undertakings to the court, ,supported by written evidence from a US attorney in respect of their enforceability.
“not seek the mother’s prosecution for the offence of child abduction; not attend the airport of arrival; not remove the children from the mother’s care; to provide a three bedroom property for the exclusive use of mother and children and pay the rent and outgoings and make other reasonable maintenance provision; to pay for the children’s return flights; to submit to a non molestation order; and, to commence proceedings in a competent USA court in respect of the children.”
Re E (Children) (Abduction: Custody Appeal)  UKSC 27 at para 
Russell J found these undertakings to be ‘no more than vague and ephemeral assurances and do not amount to protective measures at all sufficient to meet the needs and circumstances of the children in this case.’
Without any physical evidence as to the abuse there is the potential issue of parental alienation, where a parent knowingly (or, as importantly, unknowingly) is in a position where their child’s wishes and feelings are intrinsically linked to their own with regard to contact with, or even their views on, the other parent. As the mother is the primary care giver this may have been an issue, where it not for the children’s statements in the CAFCASS report and the police being called by the landlord, and the father being taken by police for psychiatric assessment.
On appeal the Court determined that the Russell J had not conducted a proper evaluation of the protective measures and that her approach to the issue of protective measures was ‘wrong’, and inconsistent with Re E in that the Judge ‘merged the first and third step of the exercise upon which she should have embarked’.
(i) identify the risks
(ii) consider protective measures
(iii) in the absence of protective measures, the Court should do the best it can to resolve disputed issues
The appeal was brought on the basis that Russell J’s decision was incompatible with the written evidence presented to the Court and based on a lack of evaluation in relation to the protective measures offered. She had found that found the enforceability of the undertakings doubtful, despite evidence from the US attorney to the contrary, she also doubted the effectiveness of the New Jersey police force as a first port of call if the mother found herself in fear of violence. The Court of appeal found there to be no way in which she could have ‘legitimately doubt[ed] the efficacy of the USA courts or police force in enforcing protective measures’.
Another issue was the emphasis Russell J placed on the CAFCASS report as evidence of domestic abuse on the parent, although the onus upon the Court was to look at and evaluate the effect of domestic abuse on the children. Russell J’s comments, were ‘not sufficiently careful to avoid the perception that she had reached adverse conclusions against the father and was sympathetic to the mother’s plight’. This may be why the Court of Appeal found her approach to be ‘confused’.
The CAFCASS officer concluded that the children were not at grave risk of harm at the hands of their father and the final recommendation was that there should be supervised contact. The Court of Appeal went further to say that the Court ‘was ill advised to interpret factual scenario’ from the report, this is perhaps due to the children’s ages, although they were generally found to be of sufficient maturity for their ages.
The final decision reiterates that it is not within the remit of English Courts to determine the ability of other 1980 Hague Convention signatories to protect potential victims of domestic abuse. Nor is it the English court’s responsibility to determine other signatories’ ability to adjudicate family proceedings. It reinforces the message that whilst Hague proceedings are not a fact finding exercise that the line between the two types of proceedings is dangerously thin, and occasionally blurred.
One of the main criticisms of Russell J’s findings was her failure to consider a conditional order for return upon the father’s performance of his offered undertaking, notably his offer to obtain an injunctive order and secure separate accommodation etc. This case relays the message that protective measures must be explored to the very fullest extent as early as possible in proceedings.
“A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return”
Return of the child [Article 11 BR II]
At its most simplistic evaluation, this case reinforces the need for proper and balanced evaluation of the issues and allegations in Article 13(b) cases. The summary nature of the assessment that should be conducted does not exclude the need for legal scrutiny of allegations. The strength in the father’s case lay in the weight and effectiveness of the protective measures which is why the Court of Appeal allowed the father’s appeal and ordered the return of the children to the state of New Jersey. I think it must also be noted that the children did not express a wish not to return to America or see their father in the CAFCASS report.