The father and mother of an eight-year-old child were Polish nationals living in Poland. The mother, having commenced divorce proceedings in Poland, wrongfully removed the child to England. The father applied for the child’s return under the Hague Convention on the Civil Aspects of International Child Abduction 1980, scheduled to the Child Abduction and Custody Act 1985. The mother claimed verbal, physical and sexual abuse by the father and that the child was psychologically and physically abused by him. A Cafcass report found that the child wished to remain with the mother in England, concluding that it would not be safe for the mother and child to return to the family home in Poland if the father remained there. The judge refused the father’s application, concluding that there was a grave risk that the child’s return to Poland would expose her to psychological and physical harm, for the purposes of article 13b of the Convention.
On the father’s appeal—
Held, appeal allowed. The effect of article 13b of the Hague Convention was that the court had to look to the future and evaluate the nature and gravity of the risk of harm to the child arising from his or her return. The judge’s judgment had failed to look with any degree of specificity to the child’s situation on return to her home state but rather focused in respect of risk based on the mother’s allegations about past events. There was no proper assessment of the nature or degree of the risk to the child of being assaulted or of seeing her mother abused by the father. Unless the court made a proper analysis of the severity of the potential risk which it was said would arise on return, it would not be in a position properly to assess whether the available protective measures would sufficiently address or ameliorate that risk in the home state. Notwithstanding the judge declaring she was not making findings based on the mother’s allegations, she appeared to have made such findings. Even if she was not, her observations appeared to be clear statements of her assessment of the evidence to show the father was abusive. Accordingly, the judge’s decision would be set aside and the matter remitted for rehearing (paras 48–66).
Christopher Hames QC and James Holmes (instructed by Eskinazi & Co Solicitors) for the father.
Henry Setright QC and Jonathan Evans (instructed by Henry Hyams Solicitors, Leeds) for the mother.