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Father secures return of abducted child

Supreme Court reverses assumption that Hague Convention countries have effective protection measures

10 June 2011

The Hague convention on child abduction was designed to protect the interests of children regardless of how the parents themselves may be affected by an order to return a child, the Supreme Court has ruled.

The children in the case were born to an English mother and Norwegian father and had been brought up in Norway. Following difficulties within the couple the mother left for England, taking the children with her without the father’s consent.

“The fact that the best interests of the child are not expressly made a primary consideration in Hague Convention proceedings does not mean that they are not at the forefront of the whole exercise,” the court said.

Upholding the findings of Pauffley J at first instance, the court said in E (children) [2011] UKSC 84 that the children had not put roots in England and that they could, prima facie, be returned to Norway.

In what the justices described as “a classic case of serious psychological abuse” the Supreme Court said that despite evidence of the father’s violent behaviour – including killing the family cat and the pet rabbit – it was in the children’s interest to be returned to Norway, where he lived, accompanied by their English mother if she wished to be with them.

Although the Hague Convention provides for the swift return of abducted children, it also includes exceptions, such as the possibility of a “grave risk” of harm to a child under article 13, on which the mother relied.

The Supreme Court had also been invited to consider the extent to which the mother could object to the children’s return on the basis of article 8 of the European Convention on Human Rights on the right to family life.

The earlier case of Neulinger, in the Strasbourg court, appeared to suggest that article 8 could require a full-blown examination of the child’s future in the state of request, but the Supreme Court has now clarified that such an examination, if one was needed, could be carried out in the state of request.

Nina Hansen, a partner at Freemans Solicitors, acted for the mother. Although disappointed by the outcome of the case as far as the mother was concerned, she said the court had brought welcome clarification of the scope of the article 13 exception and that this was a good result for the children.

The Neulinger case, she said, considered the question of harm from the perspective of delay in returning abducted children, whereas the present case was about domestic violence, which raised specific issues in respect of the concept of “grave risk… of physical or psychological harm… or intolerable situation”.

“There is now clearer guidance for future cases on whether a child is at risk of harm,” she said, “where the courts will balance the gravity of the risk against the seriousness of the harm.”

“It is a slightly lower threshold,” Hansen continued, “which will require the court to look at the circumstances and reach a decision on the balance of probabilities.”

According to Hansen the justices have also widened the scope of the exception in article 13 to include children being exposed to “the harmful effects of seeing and hearing the physical or psychological abuse” of her their parents, which the justices said was “not reasonable to expect a child to tolerate”.

Hansen also welcomed the court’s findings that there should be no assumption that measures proposed or available for the protection of children are deemed satisfactory in all Hague Convention countries.

“Protective measures have to be effective,” she continued. “For years it was assumed that all Hague Convention countries because of their status as signatories had effective protective measures but after this ruling it is no longer the case; now you have to prove it.”

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Divorce Children Local government