T (Father) v G (Mother)
[2024] EWHC 246 (Fam)
T (Abduction: Protective Measures: Agreement to Return), Re
1 December 2023
[2023] EWCA Civ 1415
Court of Appeal
A mum brought her child to the UK from the US, claiming abuse. The dad wanted the child back. They *almost* agreed, but disagreed on how safe the child would be in the US. A lower court made them stick to the almost-agreement, but the higher court said that's wrong; a real agreement needs everyone to agree on the important stuff, especially safety. The case now goes back to court to decide fairly, based on the child's best interests.
Key Facts
- •Appeal against two orders made in Hague Convention proceedings concerning the return of a child (T) to the USA.
- •Mother (Appellant) brought the child to the UK from the USA, allegedly due to domestic abuse.
- •Father (Respondent) sought T's return to the USA under the 1980 Hague Convention.
- •Parties purportedly reached an agreement at court, but disagreements remained regarding protective measures in the USA.
- •Mother later retracted her agreement to return with the child, citing deteriorating mental health.
- •The lower court held the mother to the agreement, finding it sufficiently complete despite outstanding issues.
Legal Principles
A court can determine a concluded agreement in Hague Convention proceedings only if there is consensus on the effectiveness of proposed protective measures in the requesting state.
This case's analysis of the 1980 Hague Convention.
Rose v Rose [2002] EWCA Civ 208 and Xydhias v Xydhias [1999] 2 All ER 386; principles of broad judicial discretion in determining whether parties have reached agreement in financial remedy proceedings have limited application to Hague Convention cases.
Rose v Rose and Xydhias v Xydhias, discussed in sections 58-60.
The court must consider a taking parent's change of position on return mid-hearing, examining its impact on the child's intolerability and the parent's reasons for the change.
Case analysis regarding a party changing position before a final order.
Undertakings containing protective measures, while sometimes used, are not easily enforceable in foreign states and should be used with caution, especially in domestic violence cases.
Discussion of undertakings and their enforceability in foreign courts.
Protective measures must be effective and directly address the grave risk; ‘soft landing’ provisions are distinct and should not be conflated.
Analysis of protective measures versus 'soft landing' provisions.
Outcomes
Appeal allowed.
The lower court erred by holding the parties to an incomplete agreement lacking consensus on protective measures. The court improperly relied on Rose/Xydhias and failed to adequately address the mother's change of position.
Lower court orders set aside.
The orders were defective due to lack of agreement on essential terms, improper reliance on precedent, inadequate consideration of the mother's changed circumstances, and incompatible and defective order drafting.
Case remanded for case management directions and a new final hearing.
To address the lack of agreement on protective measures and ensure a just determination in the best interests of the child.