E (Children) (FC)
| Jurisdiction | England & Wales |
| Judge | LADY HALE,LORD WILSON |
| Judgment Date | 10 June 2011 |
| Neutral Citation | [2011] UKSC 27 |
| Date | 10 June 2011 |
| Court | Supreme Court |
[2011] UKSC 27
Lord Hope, Deputy President
Lord Walker
Lady Hale
Lord Kerr
Lord Wilson
Appellant
Henry Setright QC
David Williams
(Instructed by Freemans Solicitors)
Respondent
James Turner QC
Ian Cook
(Instructed by TLT LLP)
Respondent
Baroness Scotland QC
Edward Devereux
(Instructed by Dawson Cornwell)
Intervener (The AIRE Centre)
Deirdre Fottrell
Radhika Handa
(Instructed by Mishcon de Reya)
Intervener (Reunite International)
Richard Harrison
Jennifer Perrins
(Instructed by Bindmans LLP)
Intervener (Women's Aid Federation of England)
Stephen Knafler QC
Teertha Gupta
Irena Sabic
Neil Jeffs
(Instructed by Sternberg Reed)
LADY HALE AND LORD WILSON, DELIVERING THE JUDGMENT OF THE COURT
The decision of the European Court of Human Rights in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122 was greeted with concern, nay even consternation in some quarters, because of its possible impact upon the application of the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the Hague Convention"). The Swiss Federal Court had rejected a mother's claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him in an intolerable situation. Nevertheless, the Grand Chamber of the European Court held that to enforce the order would be an unjustifiable interference with the right to respect for the private and family lives of mother and child, protected by article 8 of the European Convention on Human Rights ("the ECHR").
The Court of Appeal granted permission to appeal in the case before us, because "it was high time for this prominent case to be considered by the full court [of Appeal] for the guidance of the judges of the Division and specialist practitioners": [2011] EWCA Civ 361, para 5. This Court gave permission for essentially the same reason, as we thought it inevitable that sooner or later the inter-relationship of these two international instruments, both of them now translated into the law of the United Kingdom, would have to be resolved. But there were two other considerations. First, article 3(1) of the United Nations Convention on the Rights of the Child 1989 ("the UNCRC") requires that in all actions concerning children, their best interests shall be a primary consideration. That obligation formed a prominent part of the Strasbourg court's reasoning in Neulinger. Its inter-relationship with article 8 of the ECHR was recently considered in this Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 WLR 148. Second, article 13b has not previously been directly in issue in this Court or in the House of Lords, although there were important observations about it in two House of Lords cases, Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 and Re M (Children) (Abduction; Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288.
In essence, Mr Henry Setright QC, launches a three-pronged argument on behalf of the abducting mother:
(i) Article 3(1) of UNCRC applies just as much to the decision to return a child to her place of habitual residence under the Hague Convention as it does to any other decision concerning a child. The current approach to article 13b, at least in the courts of England and Wales, does not properly respect the requirement that the best interests of the child be a primary consideration.
(ii) That argument is supported by the decision of the Grand Chamber in Neulinger, which is the principal authority on the primacy of the best interests of the child in the interpretation and application of the Convention rights.
(iii) In any event, the purposes of the Hague Convention are properly achieved if article 13b is interpreted and applied in accordance with its own terms. There is no need for the "additional glosses" which have crept into its interpretation in English law. It is quite narrow enough as it is.
In these arguments, he is supported by Baroness Scotland QC, on behalf of the half-sister of the two children whose return is sought. She points out that the decision to return those children to Norway does "concern" their older sister, who is closely involved in their day to day care, so that their sister's welfare should also be a primary consideration. They also enjoy family life together, so that to separate them would amount to an interference in their right to respect for that family life.
Ultimately, as we shall see, there is a great deal of common ground between Mr Setright and Baroness Scotland, on the one hand, and Mr James Turner QC, who appears for the father, on the other. They differ, of course, on the outcome of the case. We have also had written and oral interventions from Reunite and from the AIRE Centre and a written intervention from the Women's Aid Federation of England.
All parties recognise that the context in which these cases arise has changed in many ways from the context in which the Hague Convention was originally drafted. There is every indication that the paradigm case which the original begetters of the Convention had in mind was a dissatisfied parent who did not have the primary care of the child snatching the child away from her primary carer (see, eg, TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515, para 43; PR Beaumont and PE McEleavy, The Hague Convention on International Child Abduction (1999), p 3). Hence the Convention draws a deliberate distinction (in articles 3 and 5) between rights of custody and rights of access, and (in articles 3b and 13a) between rights of custody which are being exercised and rights which are not, and protects the former but only to a limited extent the latter. Including a noncustodial parent's right to veto travel abroad within "rights of custody" has been a more recent interpretation (discussed in Re D). Nowadays, however, the most common case is a primary carer whose relationship with the other parent has broken down and who leaves with the children, usually to go back to her own family. There are many more international relationships these days than there were even in the 1970s when the Convention was negotiated, so increasingly returning to her own family means crossing an international boundary. International travel is also much easier and cheaper, especially within the European Union where border controls are often non-existent.
It is also common for such abducting parents to claim that the parental relationship has broken down because of domestic abuse and ill-treatment by the other parent. That is why – she says - she had to get away and that is why – she says - she had to do so secretly. She was too afraid to do otherwise and she is too afraid to go back. Critics of the Convention have claimed that the courts are too ready to ignore these claims, too reluctant to acknowledge the harm done to children by witnessing violence between their parents, and too willing to accept that the victim, if she is a victim, will be adequately protected in the courts of the requesting country: see, for example, M Kaye, "The Hague Convention and the Flight from Domestic Violence: How Women and Children are being returned by Coach and Four" (1999) 13 Int J Law, Policy and Family 191. In particular, it is said, the courts in common law countries are too ready to accept undertakings given to them by the left-behind parent; yet these undertakings are not enforceable in the courts of the requesting country and indeed the whole concept of undertakings is not generally understood outside the common law world. At all events, the change in the likely identity of the abductor places a premium on the efficacy of protective measures which was not so apparent when the Convention was signed.
Yet the parties also understand that there is no easy solution to such problems. The first object of the Convention is to deter either parent (or indeed anyone else) from taking the law into their own hands and pre-empting the result of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any dispute can be determined there. The left-behind parent should not be put to the trouble and expense of coming to the requested state in order for factual disputes to be resolved there. The abducting parent should not gain an unfair advantage by having that dispute determined in the place to which she has come. And there almost always is a factual dispute, if not about the primary care of the children, then certainly about where they should live, and in cases where domestic abuse is alleged, about whether those allegations are well-founded. Factual disputes of this nature are likely to be better able to be resolved in the country where the family had its home. Hence it is one thing to say that the factual context has changed and another thing entirely to say that the change should result in any change to the interpretation and application of the Hague Convention.
These are issues of general principle, of importance in the great majority of Hague Convention cases, because article 13b is pleaded in the great majority of statements of defence in such cases. Yet they arise for decision in the context of a real case, involving real people, three of whom were in court while we heard the oral argument. We shall come to the detailed facts of the case when we come to consider what the outcome of the appeal should be. For the time being, a simple summary will suffice.
We are concerned with two little girls, whom we shall call Livi and Milly, to make them real while respecting their anonymity. Livi is seven and Milly is four. They were born in...
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