Re L (a child – article 13: protective measures) (nos 1 and 2)
| Jurisdiction | England & Wales |
| Judge | COBB J |
| Judgment Date | 21 December 2022 |
| Court | Family Division |
Abduction – Grave risk – Protective measures – Contextual approach – Risk from domestic abuse – Independent accommodation – Financial provisions – Complying with conditions.
The parents were both from Roma families and Slovakian by birth; the father was now Belgian and lived in Belgium; the mother had spent most of her childhood living in England. Neither parent worked; both relied on state benefits. Having met via Facebook in 2019, the parents lived together briefly in Belgium and the child was born in Belgium in the summer of 2021. The relationship was a turbulent one; each accused the other of abusive behaviour and of serious mental health issues. On occasions the Belgian police were called to the home. By March 2022, the father was staying with the paternal grandmother, while the mother and the child remained in the home.
In March 2022, the parents had a serious argument, which resulted in the mother going to stay with the maternal grandfather, before travelling briefly to Slovakia to obtain a passport for the child; in May she and the child travelled to England. The father obtained a Belgian order granting him exclusive parental authority and also an order that the child’s primary residence was with him. In July the father’s application for the child’s summary return to Belgium under the 1980 Hague Convention on Abduction came before the English High Court. At various points in July a consensual return to Belgium was discussed by the parents, but the negotiations came to nothing. The parents’ tenancy had been surrendered and the father was living with the paternal grandparents.
It was agreed that at the date of removal, the child had been habitually resident in Belgium. Although the parents were unmarried, it was accepted that the father not only had rights of custody, but that he had also been exercising those rights at the time of removal. The mother initially sought to argue that the father had consented to the removal, but eventually accepted that she could not demonstrate ‘clear and unequivocal’ consent. The main issue between the parties after this was whether a return order would expose the child to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation, under art 13(b) of the 1980 Hague Convention. The mother based her ‘grave risk’ argument upon: (i) risks associated with returning to the same town as the father, given the nature of their previous relationship; (ii) a lack of adequate accommodation for her and the child; (iii) a lack of adequate financial support in Belgium; (iv) a risk that she would be arrested and/or prosecuted for child abduction; (v) a risk that she would lose the day-to-day care of the child as a result of the most recent Belgian court order; (vi) separation from the child in the event that she decided not to return.
A preliminary issue concerned whether the English court could or should hear oral evidence from the father and/or supporting witnesses (on both sides) by video-link from Belgium. In the absence of any evidence which would contra-indicate the giving of evidence from Belgium, and having regard to the overriding objective contained within r 1.1(2) of the FPR 2010 and the duty to manage cases (r 1.4), together with the expectation that Hague Convention cases were heard ‘expeditiously’ and within 6 weeks (art 11 of the 1980 Hague Convention and PD 12F para.2.14), the judge decided that it was not appropriate to delay the hearing for further enquiries to be undertaken about this. In fact, once the mother had abandoned her defence based on ‘consent’, it was unnecessary to hear evidence by video-link from abroad.
The father was offering undertakings not to assault, threaten, intimidate, harass or pester the mother, not to support Belgian proceedings against the mother in relation to the abduction, not to attend at the airport, not to separate the child from the mother save for any court-ordered or agreed arrangements; and to support an early listing of the Belgian hearing. He was also proposing that he pay for the return flights, arrange for and pay for a furnished one-bedroom property (he supplied details of a suitable property), and share his benefits income with the mother until she started to receive benefits. On the final day of the hearing the mother explained that she was now considering not returning with the child, having earlier in the hearing given direct evidence of her intention to accompany the child, should the court order a return. She explained that at the time she had not really thought that the child would be sent back and that the situation had now ‘sunk in’. Later, the judge was told that the mother was too upset to say whether she would return.
A further hearing was convened three weeks later. The father, who had failed to secure any accommodation for the mother, did not attend. At a reconvened hearing, he explained that he had only been able to identify a ‘budget’ bed-sit for the child and mother in student accommodation and would in any event struggle to afford to pay for this for three months.
First judgment
Held, making a return order provided certain protective conditions were fulfilled—
(1) While making no findings, the court had little doubt that the parents’ relationship had been characterised by heated arguments and had been very unsatisfactory for both of them. Insofar as domestic abuse might have occurred, both parents had apparently been capable of calling the police to intervene in their disputes; the mother complained that the police had been ineffective, but she herself had not followed through with requests for obtaining medical evidence to support her complaints. The mother had failed, on the evidence, to demonstrate that the father suffered materially from mental health difficulties of such an order as put her at risk (or at all). The risk to the child of being returned to Belgium had to be seen in the context that: (i) in August 2022 the mother had apparently freely entered into negotiations to return, those negotiations only coming to nought because of a disagreement about how the passports would be returned to the mother and whether the return should be by Eurostar or a flight; this was inconsistent with her stated fear now. There was no evidence of any coercion or control; (ii) the father had given an undertaking not to assault, threaten, intimidate, harass or pester the mother, which could be registered or declared enforceable under the 1996 Hague Convention; (iii) and there was no suggestion that the parties would be living under the same roof on the child’s return. Any risk there might be from domestic abuse was not such that the child’s return to Belgium would expose him to physical or psychological harm or otherwise place him in an intolerable situation (see [2022] EWHC 3427 (Fam) [38]–[40], below).
(2) It was essential that reasonable furnished accommodation was provided for the child and the mother on return; any return was conditional upon proof being provided of adequate furnished accommodation being made available for a period of no less than three months (see [2022] EWHC 3427 (Fam) [41], below).
(3) The mother could return to and remain in Belgium legally, as an EU citizen, and would in due course be eligible for reasonable state benefits there, even if it would take some time for these to come through. The father had proposed to share equally his income (from benefits), and to support the mother in making her benefits claim but it might be that the mother would have to call upon her own family again to assist her in the short term financially and emotionally (as she had in the recent past) (see [2022] EWHC 3427 (Fam) [43], [44], below).
(4) Parents who abducted their children across borders must face the consequences. It could not be right that the risk of prosecution automatically created a ‘grave risk’ of psychological harm to the child, should the child be returned, agreeing with views expressed in EH v K and others (abduction: undertakings)[2017] EWHC 1141 (Fam). The court was satisfied that the mother would not be arrested on her arrival back in Belgium, and although there was a risk of prosecution for child abduction, the process had gone no further than the prosecutor making a decision whether to summon her or not. The mother was vulnerable to a fine as a result of her alleged breach of the existing order (a civil penalty of up to €50,000); however, it was reasonable to assume that there would be some judicial evaluation of her means. She had access to the Belgian family court and the father had offered his undertaking to support the listing of an early hearing date (see [2022] EWHC 3427 (Fam) [45], [47], below).
(5) It was extremely unlikely that the mother would not return with the child. While accepting that it was not easy for a mother as young as this in circumstances such as these to contemplate a return to a country she had left more than seven months ago, that was a far cry from establishing that there was a ‘grave’ risk of psychological or physical harm to the child should the court order his return. The art 13(b) exception was of very restricted application; the court recognised the inconvenience, anxiety and uncertainties for the mother in a return to Belgium, but the situation the child would face was not close to exposing him to a grave risk of harm (see [2022] EWHC 3427 (Fam) [50], [51], below).
(6) The court therefore granted the father’s application for a summary return, subject to the father providing to the court confirmation that there was suitable accommodation and appropriate funds available to the mother and proof of his commitment to the protective measures (so that they could be registered and/or enforced in Belgium) (see [2022] EWHC 3427 (Fam) [52], below).
Second judgment
Held, discharging the return order on the basis that the father had not complied with the protective condition precedent in a reasonable time and had shown...
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