Just 9 months after dealing with its last Hague Convention case, Re E [2011] UKSC 27, the Supreme Court has returned to the Convention and (expressing some surprise at being required to do so) has revisited the Article 13(b) defence potentially available to an abductor, namely that ‘there is a grave risk that [the child’s] return [to the country of origin] would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.’

The unexpected return to the issue came about, it appears, because the Supreme Court took the view that the Court of Appeal ([2011] EWCA Civ 1385) had misinterpreted Re E and had itself imposed an ‘impermissible gloss’ on the wording of the Convention, and had wrongly overturned the first instance decision of Charles J, who had found the Article 13(b) defence to be made out and had exercised his discretion not to order a return.

The case concerned a two-year-old child who was removed by his mother, in breach of his father’s rights of custody, from Australia to the UK in February 2011. The case shared some features with Re E, in that the mother raised allegations of serious domestic abuse against the father (who had a history of serious drug and alcohol addiction) and also asserted that she herself would be so traumatised by a return that her mental health would be put at risk and this, in turn, would have a significant effect on the child.

The approaches of Charles J at first instance, the Court of Appeal and the Supreme Court to the issue of the mother’s allegations varied to a startling degree. Charles J did not hear oral evidence. However, he reviewed the written statements and also some 300 texts and emails passing between the parents over the relevant period. He ‘faithfully’ (per Lord Wilson, delivering the judgment of the Supreme Court) followed the Re E guidance in that he considered first whether the protective measures proposed by the father would be sufficient to address the risk created by the mother’s allegations, assumed to be true. He concluded that they would not and then went on to assess the written evidence, including psychiatric evidence of the mother’s mental state, concluding after he had done so that he mother had made out her Article 13(b) defence and the child should not be returned.

By contrast, the Court of Appeal made what the Supreme Court described as ‘an erroneous assumption’ that the mother’s allegations were entirely disputed, and were unproven. By approaching the matter in this way, the Court of Appeal focused its judgment on what Thorpe LJ considered to be the mother’s subjective perception of risk, and in what circumstances (likely to be very rare, thought the Court of Appeal) such a subjective perception could ground an order for non-return.

In criticising the approach taken by the Court of Appeal to the mother’s allegations, the Supreme Court was prepared to dive quite deeply into an analysis of the parties’ written evidence, to the extent that the judgment comments that on the issue of the father’s drug relapses, the father’s written evidence was ‘far from frank’ and that the other evidence of what the Court describes as the father’s ‘descent into abuse’ was ‘uncontrovertible.’ There is also a suggestion (paragraph 15) that the written evidence of members of the father’s family was not to be believed. The Court emphasises that given the objective evidence before Charles J, it was unnecessary for him to go on to consider, as he then did, the issue of the mother’s subjective perception; and that in their consideration of this issue the Court of Appeal wrongly interpreted what the Supreme Court said in Re E.

The Supreme Court judgment sets out at length and in detail the evidence which grounded, in that case, a conclusion that the mother had established an Article 13(b) defence on objective grounds. The Court was keen to ensure, however, that the message of Re E had been heard and understood and to that end it has explicitly and firmly rejected the Court of Appeal’s formulation of ‘the critical question’ in an Article 13(b) Hague Convention case, and re-stated it as follows (paragraph 34):

“In the light of these passages we must make clear the effect of what this court said in In re E. The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned.”

This passage, plainly intended to be the core message of Re S, may not prove to be straightforward in application. On the one hand it is a re-statement of the Re E message, that objective risk is not a sine qua non for an Article 13(b) defence if the abductor’s state of mind is such that this itself will put the child at risk of harm. On the other hand judges are encouraged to make an objective assessment of risk when considering the abductor’s likely mental health if a return is ordered. The decision in Re S itself offers little guidance on this because the Court there was so plainly concerned to demonstrate that the mother’s concerns were objectively justified, and so the vexed question of objective versus subjective perception of risk did not need to be addressed.

The Supreme Court has taken the opportunity to make two further comments on the management of Article 13(b) cases and on Hague jurisprudence generally. At first instance, a direction was made that the court consider at a preliminary hearing whether the mother’s allegations, taken at their highest, would come within the Article 13(b) exception, having regard to the proposed protective measures. This direction was disapproved by the Supreme Court, Lord Wilson saying that this was not the intention of Re E and that the guidance set out their did not require any sort of two-stage approach.

Finally, after the conclusion of the judgment, the Court added a ‘postscript’ expressing concern at the recent re-statement by the ECtHR in X v Latvia (App no 27853/09) that Hague Convention cases demanded an in-depth examination of the entire family situation (as initially expressed, controversially, in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122), and stating its conviction that such an in-depth examination is not required either by the terms of the Convention or of the ECHR, art 8.