AO v LA
| Jurisdiction | England & Wales |
| Judge | MOSTYN J |
| Judgment Date | 24 January 2023 |
| Court | Family Division |
Abduction – Grave risk – Protective measures – Likelihood of perils – Approach to be taken – Requisite proof – Utility of cross-examination – Children’s objections.
The parents, both of Nigerian descent, lived in Ireland; they had two children, a son born in February 2012 and a daughter born in March 2014. The relationship was a very turbulent one and in April 2020 the father obtained a protection order from the Irish court, on the basis of allegations that the mother had assaulted him and thrown him out of the family home. The police made a referral to the Irish social services agency. The father was granted contact in June 2022, direct contact every Saturday for six hours, and joint guardianship, and the mother was ordered not to remove the children from the jurisdiction.
The mother nonetheless removed the children from Ireland on 29 August 2022. The father claimed that he only became aware of this when a parenting app alerted him to the fact that the children had not returned to school. The mother did not attend the next Irish hearing on 8 September. The father reported the children’s removal to the Irish police and sought the children’s summary return under the 1980 Hague Convention on Abduction.
At the first inter partes hearing in November 2022 the mother, then acting in person, accepted that the removal was unlawful and indicated that she intended to defend the application on the basis of both limbs of the art 13(1)(b) defence. ‘The judicial … authority of the requested State is not bound to order the return of the child if the person …, [who] opposes its return establishes that 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’. She also confirmed that if a return order were made, she would accompany the children back to Ireland. However, by the main hearing in January 2023, the mother was claiming that she would not return to Ireland, having relinquished her housing in Ireland and, she said, having no means of supporting herself or the children. She was now also arguing that the children objected to a return to Ireland.
The father had proposed as protective measures: (i) not supporting a prosecution of the mother for the removal; (ii) paying maintenance for the children until the first hearing in Ireland; (iii) the children remaining in the mother’s care apart from contact; (iv) contacting the mother in writing or through solicitors. The mother’s position was that no protective measures could be devised which would enable her to consider returning to Ireland.
In the Cafcass report both children were recorded as saying to the FCA that they did not want to return to Ireland. The FCA stated in her report: ‘As documented above, J and E, expressed a wish not to return to Ireland to live’. In their letters to the judge the son had said, ‘I don’t wanna go back to Ireland’; and the daughter had said, ‘I want to stay here and for him to leave us alone’. The daughter was aware that the mother had said she would not be returning to Ireland even if both children did so.
Held, making a return order—
(1) Under the terms of the art 13(1)(b) exception, the court was required to make a prediction of the degree of likelihood of a possible future event, and then to make (in effect) a temporary order reflecting the result of that assessment. It had to do so in interim, summary proceedings where the written evidence would not be tested by cross-examination, as with an application for an interlocutory injunction, or an interim care order. It seemed that none of the authorities addressed the requisite degree of likelihood of the perils referred to in art 13(1)(b) or the appropriate mode of proof of that likelihood. Therefore, the jurisprudence on the grant of interlocutory injunctions was an extremely useful analogy when analysing these key components of the exception (see [23], [25], below).
(2) Where an interlocutory injunction was sought, and the written evidence revealed significant contested facts, the court would not normally attempt to resolve those disputes. Provided that the applicant demonstrated that they had a ‘real prospect of success’ the court would establish, first, if damages would be an adequate remedy to either party were the injunction to be respectively refused or granted and, if so, would refuse or award an injunction accordingly. If damages would not suffice either way, the court would make an order based on the balance of convenience. This would be likely to favour the status quo, but might also reflect the relative strengths of each party’s case, provided this was based on facts about which there could be no credible dispute. Where a statute stipulated a heightened degree of likelihood of a future harmful event as a precondition for an order protecting Party X against the happening of that event, the court must appraise the written evidence and make a decision whether, applying that heightened standard of probability, Party X would succeed at a trial in proving the pleaded facts, applying Cream Holdings Ltd v Banerjee [2005] 1 AC 253 (see [29], [33], [35], below).
(3) Referring to the alternative limbs of art 13(1)(b) together as an ‘intolerable peril’, domestic violence, economic disadvantage and educational or developmental impairment were commonly cited causes of an intolerable peril. As a matter of logic, semantics, and the avoidance of family law desert-island exceptionalism, the high probability denoted by ‘grave risk’ in art 13(1)(b) should, in the great majority of cases, be the same level of probability as that required in a case governed by s 12(3) of the Human Rights Act 1998 (ie more likely than not). As explained in Cream Holdings Ltd v Banerjee, there might be cases where the potential adverse consequences, should the future event happen, would be particularly grave. In such a case, it might be necessary for a court to depart from this general approach and to allow a lesser degree of likelihood as a prerequisite for a protective measure. However, a court should be exceedingly slow to depart from the general approach where the art 13(1)(b) exception was relied on. Therefore, save in very exceptional situations, the court would need to be satisfied that if the child were returned it was more likely than not that he would have to endure an intolerable peril (see [36], [39], [40], [42], below).
(4) Before embarking on an appraisal of the relative strengths of the respective factual cases, the court would first ask whether the facts pleaded by Parent X would, standing alone, amount to an intolerable peril. If the answer was no, that was the end of the defence. If the answer was yes, the court would ask if the intolerable peril could be nullified by protective measures against Parent Y. Most types of intolerable peril could be nullified by appropriate protective measures, which could include non-molestation orders and orders for the provision of maintenance so that Parent X and the children could be housed and supported until the court of State B could deal with those issues. If, for whatever reason, protective measures would not nullify the apprehended intolerable peril, or if their imposition would be disproportionate or impracticable, then the court would have to do the best it could to resolve the main factual disputes between the parties in order to determine if it was more likely than not that were a return ordered the child would have to endure an intolerable peril (Re E). In common with injunction proceedings, that determination would not involve the parties being cross-examined and re-examined (these being summary proceedings where oral evidence was very rare generally, and unknown where the art 13(1)(b) exception was relied on). The court in effect evaluated Parent X’s chances of successfully proving that the child would have to endure an intolerable peril if he were returned (see [43], [45], [46], below).
(5) The exception of consent required proof of past facts, whereas the art 13(1)(b) exception required the making of a prediction about the likelihood of a future event. However, each required the court to make a probabilistic assessment, in the former case as to whether past events had happened and in the latter as to whether future events would happen. An essential difference between the two processes was the standard of proof required to reach the decision. But in almost all art 13(1)(b) cases the standard of proof required for the prediction should be the normal civil standard. Further, when making the prediction, the court in almost every case would have to make some findings about past events. Such a fact-finding exercise was neither impossible nor very difficult. It would be unlawful to assume, in the absence of functioning protective measures, that the allegations pleaded in support of the exception by Parent X were true and then go on to refuse the application. This was because the burden was on Parent X to satisfy the court that it was more likely than not that if the child was returned he would have to endure an intolerable peril. That decision could only lawfully be made by weighing the evidence of both parents (see [47], [48], below).
(6) The court did not have to test the allegations in cross-examination in order to resolve a dispute about the truth of alleged past facts. In summary proceedings like this the requisite findings could be made in virtually every case, whichever exception was relied on, without cross-examination, which was by no means an indispensable method for a court to discover the truth. Indeed, it might lead to a court making a judgment based on a witness’s demeanour, which was pregnant with the real risk of making an entirely wrong assessment. Cross-examination that amounted to little more than counsel putting disputed facts to a witness was often largely pointless and futile. The primary utility of cross-examination was to...
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