The mother removed her three children, aged 4, nearly 3 and 19 months, from their father in Spain and moved with them to England. The father brought an application for a return order pursuant to the 1980 Child Abduction Convention in respect of the children, seeking that they be returned to Spain. The judge granted the return order and rejected the matters relied on by the mother in opposing the making of a summary return order, in which she alleged that the father had consented to the removal and that there was risk of emotional abuse should the children return, pursuant to article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction 1980, scheduled to the Child Abduction and Custody Act 1985. The judge held that the father had not consented to the mother removing the children from Spain and determined that the mother had not established that there was any grave risk that the return of the children to Spain would expose them to physical or psychological harm or otherwise place them in an intolerable situation. The mother appealed on the grounds (i) that the judge was wrong not to hear oral evidence from the parties for the purposes of determining whether the father had consented to the children’s removal and, accordingly, that his finding that the father had not consented could not stand; and (ii) that the judge’s approach to the determination of whether the mother had established a grave risk within the scope of article 13(b) of the 1980 Convention was flawed firstly because he had failed properly to apply the approach set out in In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144. The approach set out in that case was that where allegations of domestic abuse were made, the court should first ask whether, if they were true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court had to then ask how the child could be protected against the risk. In the present case, the judge had compartmentalised each aspect of the mother’s case and dismissed each in turn, thereby failing to consider their overall effect and the totality of the overall risk. Secondly, the judge’s decision was flawed because he had failed properly to analyse the children’s situation on their return to Spain and the efficacy of the proposed protective measures.
On the mother’s appeal—
Held, appeal allowed. (1) There were sound reasons for there being a distinction, for the purposes of hearing oral evidence, between the issue of consent and whether article 13(b) had been established. There was a clear difference between consent and article 13(b); they were not equivalent. Consent was a binary issue of fact in respect of which the court had to make a finding. It was a finding which was closely connected with a central aspect of the structure of the Hague Convention on the Civil Aspects of International Child Abduction 1980, namely whether the removal or retention had been wrongful. Whilst it was appreciated that the issue of consent was addressed through article 13(a), and not article 3, this did not alter the important role that consent played in the application of the 1980 Convention. Further, the approach in In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144, which took the allegations relied on to establish an article 13(b) grave risk “at their highest”, was not available in consent cases. Whilst the admission of oral evidence on the issue of consent could not be described as customary, the threshold for hearing oral evidence from the parties for the purposes of determining the issue of consent was more likely to be crossed in consent cases. Whether it was crossed was a matter for the court’s discretion which would, among other factors, take into account the nature of the available evidence including, in particular, the extent of any relevant documentary material. The judge had to decide whether it was necessary to hear oral evidence in order to be able fairly to determine that central issue of fact in the context of what was a summary process and in the context of the available documentary/written evidence. Furthermore, the ambit of any oral evidence needed to be “strictly limited”. The discretion to permit oral evidence did not alter the burden upon the parties fully to set out their cases on consent in their written statements. The purpose of oral evidence was not to assist the parties to cure any deficiencies in their written evidence but, when necessary, to put the court in a better position to decide the issue fairly. Finally, it was not correct to substitute the word “necessary”, as it appeared in paragraph 3.8 of the Practice Guidance, with the word “demanded”. While there was unlikely to be any substantive divergence, it was simpler just to apply the word used. The present case was one in which oral evidence was necessary for the fair and proper determination of whether the father had consented to the children’s removal from Spain. It followed that the judge had been wrong not to hear oral evidence on the issue of consent (paras 58–59, 64, 66–67, 74–75).
(2) In regard to article 13(b) of the 1980 Convention, the court was evaluating whether there was a grave risk based on the allegations relied on by the taking parent as a whole, not individually. There might, of course, be distinct strands which had to be analysed separately but the court could not overlook the need to consider the cumulative effect of those allegations for the purpose of evaluating the nature and level of any grave risk(s) that might potentially be established as well as the protective measures available to address such risk(s). It was not necessary for a judge to undertake the approach in In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 as a two-stage process because the question of whether article 13(b) had been established required a consideration of all the relevant matters, including protective measures. However, absent the court being able confidently to discount the possibility that the allegations gave rise to an article 13(b) risk, conflating the process set out in In re E created the risk that the judge would fail properly to evaluate the nature and level of the risk(s) if the allegations were true and/or would fail properly to evaluate the sufficiency and efficacy of any protective measures. First, at least at some point, the effect of the allegations relied on by the taking parent should be considered together when determining whether there was a grave risk. There might, of course, be cases when this was not realistic because the allegations were not connected. However, when a judge took this course, he/she should make this clear. This was because, if they were considered only individually, there was a clear prospect of the court failing to consider their overall effect and the totality of the overall risk. In the present case, the judge could not confidently discount the possibility that the allegations gave rise to an article 13(b) risk and needed to both to analyse the nature of the potential risk(s) and then carefully consider whether and how such risk(s) could be addressed or sufficiently ameliorated so that the children would not be exposed to the risk(s). By only looking at the allegations by category and individually, by not considering their overall effect, and by conflating the process set out in In re E, the judge had failed properly to evaluate the nature and level of the risk if the mother’s allegations were true and had also failed properly to evaluate the sufficiency and efficacy of the protective measures. Accordingly, the judge’s approach to article 13(b) was flawed and could not stand, and the matter would be remitted for hearing before a Family Division judge and not a deputy (paras 70–72, 77–80, 82, 89, 92, 93, 94).
Christopher Hames QC and Paul Hepher (instructed by Russell-Cooke LLP) for the mother.
James Turner QC and Edward Bennett (instructed by Dawson Cornwell Solicitors) for the father.
Henry Setright QC and Anita Guha (instructed by Goodman Ray Solicitors) for the intervener, Reunite International Child Abduction Centre.