The mother, a United Kingdom national, and the father, a national of the United States of America, met in England and married in December 2015. They bought a home together and lived there with C, the mother’s child by a previous relationship, as a family. A child, A, was born in 2017. The father, who had been working in England for his American employer, was asked to return to the USA as there was no longer a role for him in England. Ultimately, he and the mother decided that they would all move to live in the USA. Following separate proceedings, C’s father ultimately agreed to her relocation. The mother and the children finally travelled to the USA in November 2019. In the meantime, in January 2018 the father had returned to live and work in the USA. This meant that between then and November 2019, he and the mother and the children were living apart. The father visited England every few months for short periods and spent ten weeks in England following the birth of another child, B, in 2018. The mother and the children also visited the father for a week in October 2018. As a result, the mother was the primary, and largely the sole, carer of the children during the period between January 2018 and November 2019 which included B’s birth. The mother and the children returned to England on 4 May 2020. It was a clandestine removal; the mother gave the father no prior indication that she was planning to leave the USA and misled him as to what she was doing on the day that they left.
The father brought an application under the 1980 Hague Child Abduction Convention, seeking summary return of the children to the United States of America. In response, the mother contended that the children were not habitually resident in the USA at the date of their removal; that the father had acquiesced in their remaining in England (article 13(a)); and that there was a grave risk that the children’s return would expose them to physical or psychological harm or otherwise place them in an intolerable situation (article 13(b)). She contended that the father was guilty not only of serious domestic violence to her, but also of a highly abusive sustained course of conduct towards C, as well as having been physically abusive to A. The mother also explained that she would not return to the USA if a return order was made. The judge granted the return order, holding that the children “had attained a sufficient degree of integration” in the USA to have become habitually resident there by the date of their removal; the mother had not established acquiescence on the part of the father; and there was not a grave risk to the children within article 13(b) should they return to live with the father in the USA. The mother appealed on the grounds that (i) the judge had erred in her approach under article 13(b) in that, although she properly characterised the allegations, she did not carry that characterisation into her later analysis. Instead, she wrongly minimised the mother’s allegations by reference to matters which, in any event, did not diminish the nature of those allegations. (ii) The judge had erred in wrongly taking the father’s motivation for acquiescing, namely “with a view to reconciliation and reunification”, as meaning that he had not acquiesced. Acquiescence motivated by a wish to reconcile was still acquiescence.
On the mother’s appeal—
Held, appeal allowed. In analysing whether allegations were of sufficient detail and substance that they could constitute a grave risk, a judge had to consider whether the evidence before the court enabled him or her confidently to discount the possibility that the allegations give rise to an article 13(b) risk. If the assumptions made by the court with respect to the maximum level of risk were not reasoned and reasonable, the court could confidently discount the possibility that they gave rise to an article 13(b) risk. But a judge had to be careful when undertaking the exercise because of the limitations created by it being invariably based only on an assessment of the written material. A judge should not, for example, discount allegations of physical or emotional abuse merely because he or she had doubts as to their validity or cogency. If the judge concluded that the allegations would potentially establish the existence of a grave risk, then the court had to carefully consider whether and how the risk could be addressed or sufficiently ameliorated so that the child would not be exposed to a grave risk within the scope of article 13(b). If the court did not follow the approach described, it would create the inevitable prospect of the court’s evaluation falling between two stools. The court’s “process of reasoning” would not include either (a) considering the risks to the child or children if the allegations were true; nor (b) confidently discounting the possibility that the allegations gave risk to an article 13(b) risk. The court would, rather, by adopting something of a middle course, be likely to be distracted from considering how the child could be protected against the risk which the allegations, if true, would potentially establish. The likely consequence of adopting that middle course was that the court would be treating the allegations less seriously than they deserved, if true. Equally, there was the danger that, for the purposes of determining whether article 13(b) was established, the court would not properly consider the nature and extent of the protective measures required to address or sufficiently ameliorate the risk(s) which the allegations potentially created. That was what had happened in the present case. The judge’s approach had inappropriately departed from the proper approach and, as a result, did not give the allegations the weight they required but rather diminished their significance by reference to factors which, at a summary hearing, did not justify their being discounted. Accordingly, the court was in a position to determine the proper outcome of the father’s application, without the need for a rehearing. There was no doubt that, if the mother’s allegations were true, they would potentially establish a grave risk within the scope of article 13(b) in the event of the children being returned and, accordingly, the application for a return order would be dismissed (paras 91, 94–99, 112, 114, 116, 117, 124, 125, 126).
Richard Harrison QC, Katy Chokowry and George Gordon (instructed by Lyons Davidson Solicitors) for the mother.
Christopher Hames QC and Paul Hepher (instructed by MSB Solicitors) for the father.