Introduction

The case of A-M (A Child) [2021] EWCA Civ 998 addresses significant issues surrounding the application of Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The Court of Appeal's decision provides clarity on evaluating grave risks and the adequacy of protective measures when determining the return of a child abducted internationally.

In this case, the mother appealed a Deputy High Court Judge's decision to return her 22-month-old child, A-M, to Norway to reside with his father. The core of her appeal centered on the assertion that returning her child would expose him to physical and psychological harm, invoking Article 13(b) defenses against wrongful removal.

Summary of the Judgment

The Court of Appeal allowed the mother's appeal, finding that the Deputy High Court Judge erred in applying the legal tests outlined in Re E (Children) [2011] UKSC 27. Specifically, the judge failed to make reasoned and reasonable assumptions based on the mother's evidence, did not comprehensively evaluate the risk to A-M, and neglected to consider all pertinent evidence. Moreover, the judge did not appropriately assess the sufficiency of protective measures should A-M be returned to Norway without his mother.

As a result, the appeal was allowed, and the case was remitted to the Family Division for an urgent re-hearing to properly address these oversights.

Analysis

Precedents Cited

The judgment extensively references pivotal cases that shape the interpretation of Article 13(b) defenses:

• Re E (Children) [2011] UKSC 27: Established the framework for assessing Article 13(b) defenses, emphasizing the need for a grave risk evaluation and the consideration of protective measures.
• Re K (1980 Hague Convention: Lithuania) [2015] EWCA Civ 720: Highlighted that if allegations do not establish a grave risk, a return order should prevail.
• Re C (Children) (Abduction: Article 13b) [2018] EWCA Civ 2834: Emphasized critical appraisal of allegations and the need for reasonable assumptions based on evidence.
• Re H-N and Others [2021] EWCA Civ 448: Underlined the importance of recognizing patterns of abusive behavior and evaluating all evidence holistically.

These precedents collectively reinforce the necessity for courts to conduct thorough evaluations of both the risk posed by the returning parent and the protective measures available to mitigate such risks.

Legal Reasoning

The Court of Appeal scrutinized the Deputy High Court Judge's approach, identifying critical shortcomings:

• Failure to Make Appropriate Assumptions: The judge did not clearly state whether he was assuming the mother's allegations were true, nor did he make reasoned assumptions about the risk to A-M based on those allegations.
• Inadequate Evaluation of Risk: The judge's analysis was fragmented and inconsistent, oscillating between dismissing and considering the grave risk without a coherent conclusion.
• Incomplete Consideration of Evidence: Essential pieces of corroborative evidence, such as medical reports and photographs documenting the mother's injuries, were overlooked or insufficiently addressed.
• Neglect of Protective Measures: The judge primarily focused on protective measures for the mother upon return to Norway, ignoring the necessity of safeguards for A-M if returned without her.

The Court highlighted that Article 13(b) demands a structured and evidence-based approach, where the risk assessments and protective measures are directly tied to the child's welfare.

Impact

This judgment underscores the rigorous standards courts must uphold when evaluating Article 13(b) defenses under the Hague Convention. By remitting the case for re-hearing, the Court of Appeal reinforces the necessity for:

• Clear articulation of assumptions based on the evidence.
• Comprehensive and coherent risk assessments.
• Holistic consideration of all relevant evidence, including corroborative materials.
• Balanced evaluation of protective measures tailored to the child's circumstances.

Future cases will likely reference this judgment to ensure that courts thoroughly and systematically address all facets of Article 13(b) defenses, particularly in contexts involving domestic abuse and potential child harm.

Complex Concepts Simplified

Conclusion

The Court of Appeal's decision in A-M (A Child) [2021] EWCA Civ 998 serves as a pivotal reference point for the application of Article 13(b) of the Hague Convention. It emphasizes the judiciary's duty to conduct meticulous and balanced evaluations of risks and protective measures to safeguard the child's welfare.

By remitting the case for re-hearing, the court has reinforced the standards necessary for upholding the child's best interests in international abduction cases. Legal practitioners and courts must heed this judgment to ensure that all aspects of evidence and risk are thoughtfully considered, thereby maintaining the integrity and protective intent of the Hague Convention.