Supreme Court rules on correct approach to Article 13(b) of the Hague Convention

The Supreme Court today ruled on the correct approach to Article 13(b) of the Hague Convention in the case of E (Children) [2011] UKSC 84. The Court dismissed an appeal by a mother who refused to return her two daughters to their father in Norway.  

The mother removed her two daughters to England from Norway against the wishes of the father. The father applied to the Norwegian central authority under the Hague Convention on the Civil Aspects of Child Abduction 1980 for the children to be returned to Norway. Article 12 of the Hague Convention requires a requested state to return a child forthwith to her country of habitual residence if she has been wrongfully removed in breach of rights of custody. Article 13 provides three exceptions, of which this case is concerned with the second: 

"... the requested state is not bound to return the child if the person, institution or other body which opposes its return establishes that - (a) ... ; or (b) 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...."

The mother argued that this exception applied and alleged the father was violent, domineering and controlling and that she and the children were frightened of him. She also presented psychiatric evidence that she suffered from a mental disorder which will deteriorate if she has to return with the children to Norway unless certain protective measures are in place. In addition, the mother argued that article 13(b) should be interpreted in the light of article 3.1 of the United Nations Convention on the Rights of the Child, which requires that in all actions concerning children the best interests of the child shall be a primary consideration.

The trial judge in England decided that it was overwhelmingly in the children's best interests for them to return to Norway for their futures to be decided there. The Court of Appeal rejected the mother's appeal. Both the Court of Appeal and the Supreme Court agreed to hear the case principally because of concerns about the impact of the decision of the Grand Chamber of the European Court of Human Rights in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122.

The Justices stated that the case law of the European Court of Human Rights indicates that the right to respect for family life in article 8 of the European Convention must be interpreted in the light of the Hague Convention and the UN Convention on the Rights of the Child. The best interests of children have two aspects: to be reunited with their parents as soon as possible so that one parent does not gain an unfair advantage over the other through the passage of time; and to be brought up in a "sound environment" in which they are not at risk of harm.

Lady Hale and Lord Wilson said that the President of the Strasbourg court has recently acknowledged extra-judicially that "the logic of the Hague Convention is that a child who has been abducted should be returned to the jurisdiction best-placed to protect his interests and welfare, and it is only there that his situation should be reviewed in full". Therefore they held that Neulinger does not require a departure from the normal process, provided that the decision is not arbitrary or mechanical.

The Justices held that although violence and abuse between parents may constitute a grave risk to the children, where there are disputed allegations which cannot be verified, the focus should be on what protective measures can be put in place to reduce the risk. They were satisfied in this case with the trial judge's assessment that that medical treatment would be available for the mother and that there were legal remedies to protect the children should they be needed.