28th November 2019

Can a defence under the 1980 Hague Convention, Art 13(b) as to a risk of harm be established where that risk arises from the abducting parent’s own actions?

Our Cris McCurley, Family partner at Ben Hoare Bell LLP, has spoken to LexisPSL and explained how and why the court reached its decision in C v B to return the children to the original jurisdiction.

The article can be read below.

What are the practical implications of this case?

The key issues were whether the children had settled in the UK, given the passage of time that they had spent here,
and whether there was any risk to the children or the mother on return to Germany. More importantly, what should the court do if the abducting parent firmly refuses to accompany the children back to their home country?
The decision is important because, increasingly, practitioners are confronted by an abducting parent simply stating
that they cannot return to a jurisdiction with their children—thereby attempting to present the court with a fait accompli. If the children will not leave the abducting parent, how can the court order their return to the country of origin?

The judgment quite rightly:
• states that the court cannot undermine the terms of the Hague Convention on the Civil Aspects of
International Child Abduction 1980 (1980 Hague Convention)
• recognises the importance of speedy decision-making, and
• recognises the need for decisions about a child’s future to be made in the country in which they were
habitually resident, even in cases such as this when the children had been in another jurisdiction for 18
months or more.

What was the background?

The parties were the parents of three children who were born and raised in Germany. The parties separated in 2014.
Difficulties developed between them, resulting in German social services becoming involved in 2014—an involvement that existed over a sustained period of time, up until the mother fled Germany with the children in March 2018. At the time the mother left Germany, German youth services were involved with the family, as was a court-appointed psychologist. Towards the end of 2016 a ‘contact guardian’ reported that the children did not wish to see their father. In January 2017 the court ordered supervised contact and three positive meetings took place. At that point the mother disagreed with the contact guardian’s assessment and cancelled all further contact.

A psychological report was ordered to address contact and the parental capacity of the mother—especially any
negative influence that she had over the children in relation to the father. That report concluded there was no evidence to justify the fears expressed by the mother about the father, that the children had a very close with their paternal grandmother and that separation of the oldest child from the father and their paternal grandmother was a considerable burden on the eldest child who was exhibiting challenging behaviours. The report recommended unsupervised overnight contact, which precipitated the mother’s flight to the UK.

The mother didn’t tell the father she was going to leave Germany, nor did she seek his consent to leave. Although the
father immediately reported the disappearance to the German police, it was many months before the mother’s
whereabouts were discovered and only after the father made an application to the German Central Authority in
December 2018, which was received by the UK Central Authority in mid-February 2019 (I was appointed to the case
as an International Child Abduction and Contact Unit (ICACU) panel member). The initial application, made at the
beginning of March 2019, was for disclosure orders in the first instance against various government departments.
When the mother’s whereabouts were discovered in Wales, passport orders and prohibited steps orders were made to ensure a holding position until the mother’s first attendance in court in May.

It transpired that the mother had been living under an assumed name, and although children’s social care were
involved they had apparently accepted wholesale her self-reported position that she had been forced to flee Germany
with her children because of significant threats to her life made by her current husband. What was alarming was that
she had forbade the Welsh authorities from making any contact with the authorities in Germany and, in spite of their
concerns for both the mother and the children, they had accepted this prohibition apparently without question.

After being ordered not to remove the children from the address they were living at, almost immediately after the May hearing the mother moved the children to another UK location. Essential to the determination of the case was the translation of the German psychological report, which proved to be the pivotal document in the case.

The case culminated in a contested hearing in October 2019 when the mother made an application for an
adjournment on three grounds:
• to enable preparation of an expert psychological report on the impact of her return with the children to
Germany
• for separate representation of the children, and
• to allow expert evidence as to whether the father had custody rights at the time of removal

Not surprisingly, all three were refused on what was described as ‘an overreaching point’, that being the extent of the
delay.

What did the court decide?

On the refusal of the mother’s application for an adjournment, she indicated to the court that she had no intention of
returning to Germany with the children, even if that order was made. This was news to the court and did not appear in any documents she had prepared or had prepared on her behalf including her 67-page statement. As a consequence, the court heard rare oral evidence from the mother which was limited to her refusal to return—a fact that she said she had told her legal team but they had omitted to put in her statement.

The mother ultimately relied on an Art 13(b) defence, stating that there would be grave risk of physical or
psychological harm on return to Germany, or that she and the children would be placed in an intolerable situation. The court quickly dismissed the Art 13(a) defence that the father did not have any custody rights at the time of removal and the mother’s assertion that the children objected to returning to Germany.

Robert Peel QC, sitting as a deputy judge of the Hugh Court, was prompt in deciding the issue of wrongful removal,
with reference to the German authorities’ supporting statement (this specifically refers to the joint rights of custody
post-divorce). Particular significance was attached to the so-called ‘coach and four’ defence, deriving from Butler-
Sloss LJ’s judgment in C v C (Abduction: rights of custody) [1989] 1 FLR 403, [1989] 2 All ER 465, which considered
whether the actions of the mother herself caused potential risk to the child if returned. The judge said, ‘Plainly the
abducting parent cannot avoid the provisions of the Hague Convention by a manipulated, contrived situation which
purports to create a defence where there is none’ (para [61]). The judge then cited Thorpe LJ who, also in C v C, said
the trial judge should usefully ask themselves what were the intolerable features of the child’s family life immediately
prior to the wrongful abduction? If the answer is scant or non-existent, then the circumstances in which a 1980 Hague Convention, Art 13(b) defence would be upheld is difficult to hypothesise. This was the deciding feature in the case, namely that the judge—with regard to the psychological report of the entire family and the mother’s own evidence— did not accept there was sufficient risk to justify an Art 13(b) defence.

The judge considered a complex list of protective measures that could be put in place to allow the safe return of the
mother and the children. As part of the decision-making process, the judge noted that the children were German, they had lived in Germany all their lives until the mother’s removal to UK, their extended family were in Germany and their first language was German. Weight was given to the fact that the German authorities had been closely involved with the family for an extended period of time, which led the judge to conclude that those authorities were best-placed to deal with future decisions about the children.

The case highlighted the need for workable protective measures, as well as obtaining good early translations of
relevant court documents from the left-behind jurisdiction, since the judge heavily relied on a psychological report
prepared for the German court. The case also exposed the mother’s attempts to manipulate the professionals
involved, and the extent to which the children’s views were influenced and aligned to the mother’s in relation to views on their and her safety plus the threat posed by the father and the mother’s current husband. None of the allegations against the father were substantiated by the psychological report.

Accordingly, the court ordered that the children must return to Germany.

Cris McCurley joined the partnership at Ben Hoare Bell in 2006 in order to develop specialist family law services
where the cases involve any kind of international dimension. She is a Resolution accredited specialist in international child abduction. In addition, much of her casework involves black and minority ethnic women and children who have experienced some form of abuse. She is developing a new system to allow women and children who are at high risk of abuse to engage in court proceedings while keeping their location secret and this system is currently being piloted in four different UK court locations. In C v B, McCurley instructed counsel for the applicant.

Interviewed by Kate Beaumont.

The views expressed by LexisPSL Legal Analysis interviewees are not necessarily those of the proprietor.

This article was first published on Lexis®PSL Family on 28 October 2019.