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On appeal from: [2011] EWCA Civ 1385

A mother appealed an order that she should immediately return her son, W, to Australia under the Hague Convention, on the grounds that the judge had failed to apply art 13(b) of the Convention (“there is a grave risk that his . . . return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation“). The Court considered the guidance given in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27.

The Supreme Court unanimously allowed the appeal.  In Re E (Children), the Supreme Court held that the terms of art 13(b) of the Convention were plain, that they needed neither elaboration nor gloss; and that, by themselves, they demonstrated the restricted availability of the defence. Where disputed allegations of domestic abuse were made, the Court should first ask whether, if they were true, there would be a grave risk that the child would placed in an intolerable situation; and if so, the court must then ask how the child could be protected against the risk.

The Court of Appeal had specified the crucial question as being whether the mother’s anxieties were realistically and reasonably held. In Re E (Children), however, the Court held that a defence under art 13(b) could be founded upon the anxieties of a parent about a return with the child to the state of habitual residence, which were not based upon objective risk to her, but were nevertheless of such intensity as to be likely to destabilise the parenting of that child to the point at which the child’s situation would become intolerable.

For judgment, please download: [2012] UKSC 10
For Court’s press release, please download: Press Release
For a non-PDF version of the judgment, please visit: BAILII