Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would be at risk if returned, alleging psychological abuse by F. She argued that article 13(b) of the 1980 convention should be applied against the background of article 3.1 of 1989 Convention so as to make the welfare of the children paramount. M appealed against rejection of her claim.
Held: The appeal failed. The court considered the interaction of the Hague Covention on Child Abduction and the Human Rights Convention after the decision in Neulinger in which the Grand Chamber had given preference to the latter. Both the Hague Convention and the Brussels II revised Regulation have been devised with the best interests of children generally, and of the individual children involved in such proceedings, as a primary consideration. The 1980 Convention set out to serve children’s interests with a summary remedy to allow their return to their home country where the matter could be looked at fully. It did so by making certain assumptions, though with safeguards. The Neulinger case appeared now to invite consideration of the circumstances before a child’s return, but a gloss had since been provided that ‘the logic of the Hague Convention is that a child who has been abducted should be returned to the jurisdiction best-placed to protect his interests and welfare, and it is only there that his situation should be reviewed in full.’ In the light of this and the judge’s findings that M and the children would receive protection in Norway, the appeal was rejected.
The exceptions required to resists summary return should be applied strictly and without further judicial gloss.
‘the whole of the Hague Convention is designed for the benefit of children, not of adults. The best interests, not only of children generally, but also of any individual child involved are a primary concern in the Hague Convention process. We agree with the Strasbourg court that in this connection their best interests 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. The Hague Convention is designed to strike a fair balance between those two interests. If it is correctly applied it is most unlikely that there will be any breach of article 8 or other Convention rights unless other factors supervene. Neulinger does not require a departure from the normal summary process, provided that the decision is not arbitrary or mechanical. The exceptions to the obligation to return are by their very nature restricted in their scope. They do not need any extra interpretation or gloss.’
Baroness Hale and Lord Wilson observed: ‘The first object of the Convention is to deter either parent (or indeed anyone else) from taking the law into their own hands and pre-empting the result of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any dispute can be determined there. The left-behind parent should not be put to the trouble and expense of coming to the requested state in order for factual disputes to be resolved there. The abducting parent should not gain an unfair advantage by having that dispute determined in the place to which she has come.’
Judges:
Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Kerr, Lord Wilson
Citations:
[2011] UKSC 27, UKSC 2011/0084, [2011] 2 WLR 1326, [2011] 2 FCR 419, [2012] 1 AC 144, [2011] Fam Law 919, [2011] 2 FLR 758, [2011] UKHRR 701, [2011] HRLR 32, [2011] 4 All ER 517
Links:
Bailii, Bailii Summary, SC Summary, SC
Statutes:
United Nations Convention on the Rights of the Child 1989, Hague Convention on the Civil Aspects of International Child Abduction 1980, European Convention on Human Rights 8, Child Abduction and Custody Act 1985
Jurisdiction:
England and Wales
Citing:
Cited – TB v JB (Formerly J H) (Abduction: Grave Risk of Harm) CA 19-Dec-2000
The father appealed against rejection of his claim for the return of his three children to New Zealand. . .
Appeal From – Eliassen and Another v Eliassen and Others CA 1-Apr-2011
M (British) and F (Norwegian) had their two daughters in Norway. M removed them to England saying that she feared F’s alleged psychological abuse of the children. She now appealed against an order for their return arguing that the exception to the . .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – Re M and another (Children) (Abduction; Rights of Custody) HL 5-Dec-2007
Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider . .
Cited – Neulinger And Shuruk v Switzerland ECHR 6-Jul-2010
(Grand Chamber) The Swiss Court had rejected the claimant 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 . .
Cited – Maumousseau and Washington v France ECHR 6-Dec-2007
The child’s mother (M) complained that the effective operation of the Hague Convention, in ordering the return of the applicant’s daughter to her habitual residence in the United States, M having taken her to France for the holidays and refused to . .
Cited – Daniela Lipkowsky And India Dawn McCormack v Germany ECHR 18-Jan-2011
. .
Cited – Miranda Van Den Berg And Noa Sarri v The Netherlands ECHR 2-Nov-2010
A mother was complaining that the Dutch courts had ordered the return of her daughter and had rejected her case under article 13b. . .
Cited – Raban v Romania ECHR 26-Oct-2010
The father complained that the Romanian courts had not ordered the return of his daughter when in his view they should have done. . .
Cited by:
Cited – Castle and Others v Commissioner of Police for The Metropolis Admn 8-Sep-2011
The claimants, all under 17 years old, took a peaceful part in a substantial but disorderly demonstration in London. The police decided to contain the section of crowd which included the claimants. The claimants said that the containment of children . .
Cited – Re S (A Child) SC 14-Mar-2012
The mother appealed against an order confirmed by the Court of Appeal for the return of her child to Australia. The mother and father had cohabited in Sydney, before M returned with S without F’s consent or the permission of an Australian court. The . .
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .
Cited – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil . .
Lists of cited by and citing cases may be incomplete.
Children, Human Rights, International
Updated: 05 May 2022; Ref: scu.440571