The Supreme Court’s decision in Re E can be seen in some ways as guiding interpretation of Article 13(b) of the Hague Convention ‘back on track’, following the decision of the ECHR last year in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122. Neulinger was described by Lady Hale and Lord Wilson, giving the judgment of the court, as having caused ‘concern, nay even consternation’ in some quarters, where it was interpreted as expanding the scope of an Article 13(b) defence to permit the sort of full-blown welfare enquiry traditionally frowned upon in Hague Convention cases.

Article 13(b) permits a court to refuse to return a child to the country of habitual residence if ‘there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.’ Domestic case-law has required a restrictive interpretation, discouraging full enquiry into the merits of the abductor’s case. Neulinger caused a stir because the ECHR seemed to suggest that a fuller, welfare-based  investigation might be appropriate in Article 13(b) cases, based on the need to respect the rights of the abducting parent and the child under Article 8 of the European Convention on Human Rights.

Re E itself concerned a Norwegian father and British mother, who had lived in Norway with their two children, aged (now) 7 and 4, and with the mother’s older daughter from a previous relationship. After the breakdown of the parents’ relationship, in September 2010, the mother brought the children to England without the father’s knowledge. The father applied under the Hague Convention for their return and the mother raised a defence under Article 13(b) of the Hague Convention, alleging domestic abuse by the father and arguing (on appeal, although not at first instance) that the effect of the decision in Neulinger was to require an ‘in-depth examination of the entire family situation.’ The application under the Convention was granted by Pauffley J, and the mother’s appeal to the Court of Appeal was refused.

The Supreme Court has now dismissed the mother’s further appeal. The impression given by the judgment is that this case provided an opportunity to address the issues raised in Neulinger and provide guidance for the domestic courts; the resolution of the individual appeal itself seems to have caused the Court little difficulty.

The judgment addresses the inter-relationship between the Hague Convention and the rights of both the parents and the child which are secured under the ECHR. It also considers the impact of the UN Convention on the Rights of the Child 1991, article 3(1), which provides that children’s best interests are to be a ‘primary consideration’ in all actions concerning them.

The mother argued that the domestic courts’ restrictive approach to Article 13(b) does not properly respect the abductor’s and child’s rights under the ECHR, and the child’s rights under the UN Convention. In Re E, it was argued that the Article 8 rights of the older half-sibling were also engaged.

The Supreme Court has acknowledged that in many ways the uses to which the Hague Convention is now put differ from its original purpose, which was to secure the return of children abducted from a primary carer; the ‘paradigm’ Hague case is now not abduction from a primary carer, but abduction by the primary carer who more often than not is seeking to return to her (or his) homeland. It is also acknowledged in the judgment that domestic abuse is commonly raised by a (usually female) primary carer who has returned to her home country without notifying a father, of whom she says she is afraid.

Having acknowledged these realities, and the criticism of the Hague Convention particularly by women’s rights and domestic violence groups, the judgment goes on to put in place a robust defence of the traditional domestic interpretation of the Hague Convention and a restatement of its original aims:

‘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. … Factual disputes of this nature are likely to be better able to be resolved in the country where the family had its home.’

[paragraph 8]

The Court firmly rejected the argument of Women’s Aid that Article 3 of the UNCRC should have the effect of elevating the child’s interests in a Hague case to a ‘paramount’ consideration. ‘These are not proceedings in which the upbringing of the child is in issue. They are proceedings about where the child should be when that issue is decided.’

Having re-stated the Hague Convention as primarily an instrument to determine forum, with the best interests of children generally and also of the individual child at its heart, the Supreme Court dealt with Neulinger. It is accepted in the judgment that Neulinger can be read to create a requirement that the receiving state should carry out a fuller investigation into welfare than the wording of Article 13(b) had previously been thought to require. However, the judgment points out that the ECHR decision (on whether or not the mother and child’s Article 8 rights would be infringed by a return order) came 3 years after the Swiss court had ordered the child’s return, and 5 years after the original removal. The violation of rights in Neulinger came not from the original return order, but from the delay. The Supreme Court judgment also notes that the President of the ECHR has, in a paper published since Neulinger, said that it would be an ‘over-broad’ interpretation to read the case as requiring a move away from the traditional ‘swift, summary return’ approach to a fuller, freestanding welfare enquiry.

Having dealt with Neulinger, the Supreme Court judgment returns to Article 13(b) and affirms the traditional restrictive approach. The Court also emphasises the need for a focus (not only in Brussels II cases, where it is explicitly required) on what protective measures may be put in place in the state of habitual residence to alleviate any risk that may exist. Where the protective measures are sufficient (as in Re E they were found to be), the Article 13(b) defence will fail.

The only limited solace for primary carers fleeing domestic abuse is that the Supreme Court has confirmed, perhaps surprisingly, that it is sufficient, in order to establish a risk, for the primary carer to be experiencing, subjectively, severe enough fear or distress; if this is the case, it matters not whether or not the distress is objectively justified. There is also a suggestion that the Hague Conference should consider a mechanism for requiring the requesting state to put in place protective measures, where necessary, which are in place and enforceable before the child is returned.

However, the primary message from the Supreme Court is clear: in the ‘ordinary’ case where allegations of domestic abuse are made, even when it is established that the abductor is suffering mental ill-health which is alleged to be caused by the abuse, the focus will be on the protective measures that can be put in place in order to enable the dispute to be determined in the child’s country of habitual residence. Provided that this approach is followed, and other than in the most extreme cases, there will be no conflict between the Hague Convention and the ECHR; indeed, they ‘march hand in hand.’