C (Children) (Abduction: Article 13 (B))

Factual and Procedural Background

The father appealed the dismissal of his application under the Hague Child Abduction Convention 1980 ("the 1980 Convention") seeking the return of two children aged 6 and 4 to South Africa. The initial application was decided by Judge Bellamy on 21st September 2018, who found that the mother had established her defence under Article 13(b) of the Convention. It was accepted by the mother that the children had been wrongfully retained in England, though she initially relied on the elder child's objections and Article 13(b), later abandoning the former.

The parents, originally from South Africa, had two children who had always lived with them in South Africa. In May 2018, the family travelled to England, with disputed reasons for the trip. Following an argument and police involvement, the father returned to South Africa alone, leaving the mother and children in England.

In August 2018, the father commenced proceedings seeking the summary return of the children to South Africa, offering undertakings including vacating the family home and lodging undertakings with the South African court. The mother alleged significant domestic violence and abuse by the father, concerns about his excessive drinking, and fears for her safety and mental health if returned. She also questioned the efficacy of the father's proposed protective measures.

The father disputed the allegations and provided evidence addressing the drinking allegations and financial support proposals. The mother relied on medical evidence from her GP describing her psychological condition and concerns about returning to South Africa. A Cafcass Officer reported on the elder child's views and made observations about the domestic violence allegations and their potential impact on the children.

The hearing before Judge Bellamy took place on 20th September 2018 without oral evidence, and the judge dismissed the father's application, concluding that the mother had established her Article 13(b) defence. The father appealed, contending that the judge's conclusions were unsupported by evidence and that the judge failed adequately to analyse the circumstances following a return to South Africa, including the father's proposed protective measures.

Legal Issues Presented

1. Whether the evidence supported the judge's conclusion that the mother had established her Article 13(b) defence under the 1980 Convention.
2. Whether the judge adequately analysed the future circumstances for the children if returned to South Africa, particularly in relation to the protective measures proposed by the father.

Arguments of the Parties

Appellant's Arguments

• The evidence did not support the judge's conclusions that Article 13(b) was established.
• The judge failed to properly assess the future circumstances for the children if returned, including the effect of the parents living separately and the protective measures proposed.
• The judge did not analyse how or why the father's proposed protective measures would ameliorate the risk alleged by the mother.
• The issue of enforceability of the protective measures in South Africa had not been raised before or during the hearing, despite the judge's concerns.
• The medical evidence did not support the judge's conclusion that the mother's anxieties were potentially psychologically disabling or that the children would be exposed to a grave risk.

Respondent's Arguments

• The judge was entitled to conclude on the evidence that the mother was psychologically fragile due to the father's alleged violent and sexually aggressive behaviour.
• There was clear evidence of significant impact on the mother and a grave risk of harm to the children if returned.
• The judge followed the guidance in Re E by considering whether protective measures could secure the children's protection and concluded they would not be effective.
• Caution should be exercised in placing undue weight on undertakings given to the English court, which may not be enforceable in another state.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re D (Abduction: Rights of Custody) [2007] 1 AC 619	Emphasised the Hague Convention's objective of swift return of wrongfully removed children and the need to assess protective measures' effectiveness.	The court referred to the need to consider whether protective measures proposed would effectively secure the children's protection.
Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 444	Outlined the approach to Article 13(b) defences, emphasizing the summary nature of proceedings, burden of proof, and assessing risk "looking to the future".	The court applied the guidance to assess the mother's allegations assuming their truth, then considered protective measures and their efficacy.
Re S (A Child)(Abduction: Rights of Custody) [2012] 2 AC 257	Confirmed that the approach in Re E should form part of the court's reasoning and that protective measures may alleviate risk.	The court noted the broad concept of protective measures, including reliance on home state courts, as relevant to the defence evaluation.
Re K (Abduction: Case Management) [2011] 1 FLR 1268	Explained that oral evidence is rare in Hague Convention cases due to the summary nature of proceedings.	The court noted that the hearing was conducted without oral evidence consistent with this principle.
H v K and Others (Abduction: Undertakings) [2018] 1 FLR 700	Clarified that the court must assess the effectiveness of undertakings, including compliance and remedies, not just enforceability.	The court considered the concerns about enforceability of undertakings and their weight in the assessment of protective measures.
Re H and Others (Minors) (Abduction: Acquiescence) [1998] AC 72	Established that the burden of proof lies on the person opposing return to show that an exception applies.	The court reiterated the burden of proof on the mother opposing the return under Article 13(b).
Brownlie v Four Seasons Holdings Inc [2017] UKSC 80	Set out the approach to summary determinations on jurisdictional issues, requiring a plausible evidential basis and reliable assessment where possible.	The court drew analogy to summary assessments required in Hague Convention cases.
Bols Distilleries BV v Superior Yacht Services Ltd [2006] UKPC 45	Held courts must be as satisfied as possible given interlocutory limitations that factors exist to take jurisdiction.	Referenced in support of the approach to summary decisions under limited evidence.
In re Stanford International Bank Ltd [2010] EWCA Civ 137	Applied the same test as Bols Distilleries for interlocutory jurisdictional decisions.	Supported the principle of summary evaluation of evidence in interlocutory contexts.
NWL Ltd v Woods [1979] 1 WLR 1294	Discussed the balance of risks in interlocutory injunctions where the decision may be dispositive.	Used analogously to understand the weight of evidence in summary decisions affecting parties' rights.

Court's Reasoning and Analysis

The court analysed the mother's case under Article 13(b), which requires establishing a grave risk of physical or psychological harm or an intolerable situation for the children if returned. The judge below found that if the mother's allegations were true, such a grave risk existed due to domestic violence and psychological harm to the mother, which would affect the children.

However, the appellate court found that the judge did not sufficiently assess the future situation the children would face if returned, including the fact the parents would be living separately and the protective measures proposed by the father. The judge's reasoning was seen as relating more to past abuse rather than the risk of future harm, and he did not explicitly evaluate the efficacy of protective measures.

Regarding the psychological risk, the appellate court concluded the evidence, including medical reports, did not support the judge's conclusion that the mother's anxieties were potentially psychologically disabling or that the children faced a grave risk of harm. The GP's evidence showed significant concerns but did not indicate impairment in the mother's parenting ability or psychological disablement.

The court emphasised the summary nature of Hague Convention proceedings and the burden on the objector to establish the defence on the balance of probabilities, while acknowledging the difficulty in resolving factual disputes without oral evidence. The court referenced the established approach from Re E and related cases, which involves assuming truth of allegations to assess risk and then considering protective measures.

The court also noted the importance of assessing the effectiveness of undertakings and protective measures, including their enforceability and practical effect, as part of the evaluation under Article 13(b). The failure to address these points adequately was a fundamental gap in the judge's reasoning.

Consequently, the appellate court found the judge's decision to dismiss the father's application was not supported by the evidence and legal principles, requiring the order to be set aside and the matter to be reheard urgently.

Holding and Implications

The appeal was ALLOWED and the order dismissing the father's application for the return of the children under the Hague Child Abduction Convention was set aside.

The case was remitted for an urgent rehearing to properly assess the evidence, including the future circumstances of the children upon return and the efficacy of protective measures. The decision directly affects the parties by requiring reconsideration of the return application but does not establish new legal precedent beyond clarifying the application of existing principles in the context of Article 13(b) defences under the 1980 Convention.