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Re E (Children) (FC)

Re E (Children) (FC)

Case [2011] UKSC 27 10 June 2011

Hague Convention on the Civil Aspects of International Child Abduction

Best Interests of the Child

Article 13b of the Hague Convention

International Child Abduction

International Child Custody

Domestic Violence

International Law

Family Law

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Trinity Term

[2011] UKSC 27

On appeal from: [2011] EWCA Civ 361

JUDGMENT

E (Children) (FC)

before

Lord Hope, Deputy President

Lord Walker
Lady Hale
Lord Kerr
Lord Wilson

JUDGMENT GIVEN ON

10 June 2011

Heard on 23 and 24 May 2011

Appellant Respondent

Henry Setright QC James Turner QC

David Williams Ian Cook

(Instructed by Freemans

(Instructed by TLT LLP)

Solicitors)

Respondent Intervener (The AIRE
Centre)

Baroness Scotland QC

Deirdre Fottrell

Edward Devereux Radhika Handa

(Instructed by Dawson

(Instructed by Mishcon de

Cornwell) Reya)

Intervener (Reunite

Intervener (Women’s Aid

International) Federation of England)

Richard Harrison Stephen Knafler QC

Jennifer Perrins Teertha Gupta
Irena Sabic Neil Jeffs

(Instructed by Bindmans

(Instructed by Sternberg

LLP) Reed)

LADY HALE AND LORD WILSON, DELIVERING THE JUDGMENT OF
THE COURT

1. 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”).

2. 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;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re E (Children) (FC)

Details

AGLC: Re E (Children) (FC) [2011] UKSC 27
Case: [2011] UKSC 27
Decision Date

CaseChat Overview and Summary

In this case, the Supreme Court considered the interpretation and application of Article 13b of the Hague Convention on the Civil Aspects of International Child Abduction in the context of an appeal concerning two young children, Livi and Milly, who were taken from Norway to the UK by their mother. The father sought the return of the children under the Hague Convention, while the mother argued that their return would expose them to a grave risk of harm under Article 13b. The Court of Appeal had already dismissed the mother’s appeal, but the Supreme Court granted permission to appeal for the reasons outlined in the Court of Appeal’s judgment. The mother argued that the best interests of the child should be a primary consideration in the interpretation and application of Article 13b, while the father contended that the exceptions to the obligation to return a child under the Hague Convention should be narrowly construed. The court concluded that the Hague Convention, the UNCRC, and the ECHR all share the objective of serving the best interests of children as a primary consideration, and that the exceptions to the obligation to return a child under the Hague Convention do not require any additional interpretation or gloss. The court held that the trial judge had correctly applied the Hague Convention and found that there was no grave risk of harm to the children if they were returned to Norway, as the father had made several undertakings to protect the mother and children and the court was satisfied that the protective measures recommended by a psychiatrist would be put in place in Norway.

The Supreme Court found that the appeal should be dismissed, as the trial judge had correctly applied the Hague Convention and found that the children's best interests would be served by their return to Norway. The court emphasized that the Hague Convention is designed for the benefit of children, and its objective is to deter people from wrongfully abducting children, serve the best interests of the children who have been abducted, and strike a fair balance between the interests of the child and the parents. The court also noted that while the best interests of the child are not expressly made a primary consideration in Hague Convention proceedings, they are at the forefront of the whole exercise. The court agreed with the Strasbourg court that in this connection the best interests of the child have two aspects: to be reunited with their parents as soon as possible, so that one does not gain an unfair advantage over the other through the passage of time; and to be brought up in a "sound environment," in which they are not at risk of harm.

Orders