This week the Supreme Court has been hearing an appeal from the Court of Appeal in Re E (Children.) The issues for the Supreme Court concern the proper approach to be taken to an Article 13(b) defence in child abduction cases; and the interaction between the domestic approach to the Convention and that of the European Court of Human Rights, following the ECHR case of Neulinger and Shuruk v. Switzerland (Application 41615/07) [2011] 1 F.L.R. 122 .

Article 13(b) of the Hague Convention on the Civil Aspects of Child Abduction provides that a requested state is not bound to order the child’s return if it can be established that ‘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.’ The provision has been interpreted restrictively. However, in Neulinger, the ECHR appeared to encourage a fuller enquiry into the welfare aspects of an Article 13(b) defence than the UK courts have thus far been prepared to undertake.

The facts

The Norwegian father and British mother were living 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.

The mother raised a defence under Article 13(b) of the Hague Convention, 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’ – per paragraph 139 of that case.

The decisions at first instance and in the Court of Appeal

The case was heard by Pauffley J in November 2010. She ordered the children’s summary return to Norway. The mother appealed to the Court of Appeal. At this stage permission was given to Reunite and the AIRE Centre to intervene. Subsequent to the decision of the Court of Appeal, the Women’s Aid Federation of England was given leave to intervene in the proceedings before the Supreme Court.

The Court of Appeal refused the mother’s appeal from the decision of Pauffley J. Thorpe LJ accepted the submissions on behalf of Reunite that to ‘lower the threshold’ for an Article 13(b) defence would undermine the Convention and would be contrary to the interests of children generally. All three judgments (Thorpe LJ, Aikens LJ and Black LJ) resist firmly the suggestion either that the ECHR in Neulinger had jurisdiction to oversee individual states’ applications of the Hague Convention, or that the decision in Neulinger requires a relaxing of the restrictive approach to Article 13(b) defences. Thorpe LJ commented that the appeal had given the Court of Appeal the opportunity to review the first instance decisions since Neulinger, but had had no real prospect of success.

The Supreme Court

The appeal has been heard by Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lady Hale of Richmond, Lord Kerr of Tonaghmore and Sir Nicholas Wilson.
The question for the Court is whether the English courts have been striking the right balance between upholding the aims of the Convention and regard for the child’s welfare, and in particular the effect of decisions of the ECHR on the approach taken by UK courts. Permission was granted on the basis of an application stating that the appeal raised issues as to the duty to follow decisions of the European courts under the HRA 1998; and also as to the meaning and effect of Article 3.1 of the UN Convention on the Rights of the Child.