INTERNATIONAL
CHILD PROTECTION
A publication of the Hague Conference on Private International Law;
http://hcch.e-vision.nl/upload/spring2004.pdf
The Judges’
Newsletter; Volume 7 / Spring 2004
National
Reports by 14 States and the Conclusions of the Noordwijk Judicial
Seminar
UNITED
KINGDOM (ENGLAND & WALES)
The
Rt. Hon. Lord Justice Mathew Thorpe, Court of Appeal
Enforcement
and Effecting Returns
In
TB v JB (Abduction: Grave Risk of Harm),15 the Court of Appeal was
concerned with a mother who had secretly relocated with her four
children from New Zealand to the UK.
The three eldest
children were from her first marriage, the youngest from her second
marriage. The mother alleged that she was fleeing from violence
perpetrated against her and the children by her second husband.
The first husband
applied under the Convention for the return of his three children.
At first instance Mr Justice Singer refused to order the return
of the children, on the basis that the mother’s section 13(b)
defence was made out. The mother’s mental condition and ability
to care for the children would deteriorate if they were forced to
return to New Zealand, exposing the children to physical or psychological
harm. The Court of Appeal by a majority of 2-1 reversed the trial
judge’s decision, on the basis that the trial judge had erred
in his interpretation of section 13(b). The mother could have taken
steps in the domestic courts on her return to protect herself and
her children.
Four months
after the Court of Appeal gave its judgment, and following an unsuccessful
petition to the House of Lords, the mother re-applied to a differently
constituted Court of Appeal. She asked that the order be set aside,
on the basis of new evidence about her psychological deterioration,
or alternatively on the basis that enforcement of the order was
impracticable in view of the change in her mental state. The Court
rejected the application, and later gave directions for the enforcement
of the order with the assistance of the tipstaff and court welfare
officer. By this time the children had been in the UK for over 12
months, and were respectively aged 15, 13 and 11. When the day came
the mother refused to return, but did not attempt to prevent the
tipstaff from enforcing the order. The children however vehemently
resisted being taken to the airport for the flight to New Zealand,
and the tipstaff was unable to enforce the order. The Court of Appeal
subsequently placed a stay on the order for return.
The great difficulty
in TB v JB was that it involved older children with firm views.
As a counter-balancing example, the approach of the Court of Appeal
in Re H16 is worthy of note. In that case, a Belgian father sought
the return of his three children (aged 10, 7 and 6). The trial judge
accepted that there was a valid section 13(b) defence. The President
of the Family Division on appeal, however, said (at paragraph 33):
“I do not consider that an English court is entitled to assume
a lack of will to protect these children by the Belgian authorities.
Equally I do not consider that we are entitled, in England to assume
that either the father is an uncontrollable risk or that the Belgian
authorities would be unable to manage the problem.”
Recognising
that this was an extremely difficult case, the President remitted
the matter to a judge of the Family Division to determine the precise
measures necessary to effect a return, allowing for as much delay
as was necessary to protect the immediate welfare of the children
(including liaison with the Belgian authorities to ensure the provision
of adequate housing and income support, and negotiation of proper
contact arrangements).
Recent
Qualitative Research on Returns
The
UK based International Child Abduction Centre, Reunite, last month
published a report funded by the Foreign and Commonwealth Office
titled “Outcomes for children following an abduction.”17
The study looked
at a sample of 22 cases. In the majority of cases (14 cases; 64%)
the abductor was the mother. Nine of the 14 women opposed the proceedings,
including 6 mothers who alleged domestic violence or child abuse.
Once a return order was made, 13 of the 14 abducting mothers returned
with their children. The interpretation of these figures is difficult:
on the one hand it may be thought that this undermines the defences
raised by these mothers, whilst on the other hand it may be considered
a mark of their devotion to their children that they were prepared
to return notwithstanding their concerns. Interviews with abducting
parents post-return indicated that many of them experienced difficulties
upon return, and the report suggests better postabduction support
services be made available. It is also interesting to note that
none of the 8 abducting fathers returned with the children.
In 19 of the
22 cases (86%) the abducted child was returned as a result of Hague
proceedings in the requested State, supporting the view that Convention
proceedings are the usual and most effective means of returning
children to the State of habitual residence. In the remaining three
cases the child was returned as a result of an international warrant,
non-Convention court order, or voluntarily return following service
of the Convention application.
In 13 out of
the 22 cases the child was abducted from a situation where she/he
had been living with both parents. The report interprets this as
an indication of a move away from the ‘classic’ abduction
model of non-resident parent as abductor. In the remaining 9 cases,
a custody order was in existence at the time of the abduction. The
study reports that many lawyers from whom parents had sought advice
were unaware of the legal machinery available in international child
abduction cases. Some abducting parents had also been given incorrect
information about their right to remove the child from the jurisdiction.
Post-return,
approximately half of the families were now managing to achieve
contact between child and non-abducting parent on a satisfactory
basis. The report says this is an encouragingly high percentage
given the difficult circumstances surrounding abductions.
The outcomes
of return, according to the report, were mixed positive and negative,
and were not surprising. There were benefits to the children in
effecting return, but there were also predictable resentments of
parents forced to return particularly where left behind parents
failed to deliver promised financial support. Overall however, whilst
a minority of returned parents and children did experience real
traumas, the experience of the majority was far less traumatic than
the parties expected. This, in the writers’ view, tends to
corroborate the approach of judges in England and other countries
in the strict approach to s. 13(b) and the high proportion of return
orders made.
NOTES
15 [2001] 2
FLR 515 [INCADAT cite: HC/E/UKe 419].
16 Re H (Children)(Abduction)
[2003] All ER (D) 308, [2003]EWCA Civ 355 [INCADAT cite: HC/E/UKe
496].
17 Outcomes
for children following an abduction, A report by the reunite Research
Unit, funded by the Foreign and Commonwealth Office, September 2003.
Printed by reunite, PO Box 7124, Leicester LE1 7XX
