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On appeal from: [2011] EWCA Civ 361

After the removal of two children to the UK, the father applied to the Norwegian central authority under the Hague Convention for the children to be returned to Norway. The mother argued that the following exception to the Hague Convention applied: “[there was] 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 Supreme Court unanimously dismissed the mother’s appeal. In Neulinger & Shuruk v Switzerland [2011] 1 FLR 122, the Grand Chamber held that the return of a child from Switzerland to Israel would breach ECHR, art 8. In doing so, it gave the appearance of turning the swift, summary decision-making procedure that was envisaged by the Hague Convention into a full-blown examination of the child’s future in the requested state, the avoidance of which was the very object of the Hague Convention. However, following extra judicial clarification, Neulinger did not require a departure from the normal process, provided that the decision was not arbitrary or mechanical.

The exceptions to the obligation to return were restricted in scope and should be applied without extra interpretation or gloss. Where there were disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry was bound to be on the sufficiency of any protective measures that could be put in place to reduce the risk. In this case, the trial judge was satisfied that medical treatment would be available for the mother and that there were legal remedies to protect the children should they be needed. The Supreme Court urged the Hague Conference to consider whether machinery can be put in place whereby, when the courts of the requested State identify specific protective measures as necessary if the art 13(b) exception is to be rejected, those measures can become enforceable in the requesting state.

For judgment, please download: [2011] UKSC 27
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII