H v E
[2023] EWHC 381 (Fam)
H v A
16 April 2024
[2024] EWHC 997 (Fam)
High Court
A mother took her children from Sweden. A court in England had to decide if it was safe for the children to go back. The judge considered if returning the children to Sweden would cause them serious harm because their mother might go to jail. While there was some risk, the judge decided the risk wasn't too serious, mostly because the father could care for the children, and the mother could still make things better by cooperating with the Swedish authorities. So, the judge ordered the children be sent back to Sweden.
Key Facts
- •Hague Convention 1980 proceedings concerning three children (aged 11, 8, and 6) wrongfully removed from Sweden by their mother (A).
- •Mother's defence against a return order under Article 13(b) of the Convention, arguing that return would expose children to psychological harm due to the mother's potential imprisonment in Sweden on gross child abduction charges.
- •Adjourned final disposal hearing after a previous judgment dealt with other aspects of the mother's defences.
- •New evidence submitted: psychological report (Dr. Donnelly) and expert opinion on Swedish law (Mr. Nystrom).
- •Mother's refusal to return to Sweden with the children, even if a return order is made.
- •The Swedish court had previously ordered the children into the father's care.
Legal Principles
Article 13(b) of the Hague Convention 1980: A return order may be refused if there is a grave risk that the child's return would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
Hague Convention 1980
The focus under Article 13(b) is on the child, not the source of the risk; however, the court must be cautious to avoid manipulative behaviour by a parent.
Re W [2018] EWCA Civ 664
Unless proven otherwise, courts should assume that the authorities of the requesting state are equally capable of protecting children as those in the requested state.
G v D (Art 13(b): Absence of Protective Measures) [2021] 1 FLR 36; C (A Child) (Abduction: Article 13(b)) [2021] EWCA Civ 1354
In considering Article 13(b), the court must consider the risk to the child upon return and whether the separation from the abducting parent constitutes a grave risk.
Re IG [2021] EWCA Civ 1123
Outcomes
Return order made.
The court was not satisfied that the high threshold of 'grave' and 'intolerable' risk under Article 13(b) was met. While the mother's potential imprisonment posed a risk, the court considered that the risk was mitigated by the father's ability to care for the children, the children's sibling bond, and the mother's ability to mitigate the risk through cooperation with Swedish authorities. The Swedish court’s prior order placing the children with the father was deemed relevant.