Consent and Risk of Harm in Hague Convention Case: A Deep Dive into Legal Principles

Citation: [2023] EWHC 2890 (Fam)
Judgment on

Introduction

In the matter of the High Court of Justice, Family Division, the case at hand concerns an application for the summary return of a child under the Child Abduction and Custody Act 1985, which falls within the provisions of the Hague Convention on the Civil Aspects of Child Abduction. This article aims to dissect the legal principles applied in this case by examining the facts as summarized in the judgment handed down by Deirdre Fottrell KC, and elucidating on the law as it was applied in this specific scenario.

Key Facts

The key facts of the case revolve around the relocation of a child named ‘D’ from Germany to London by the mother (‘M’), a British national. The father (‘F’), a German national, claims that ‘M’s move to London was initially for a four-week agreed holiday, while ‘M’ contends it was with ‘F’s knowledge and consent for relocation. Subsequent events led to ‘F’ applying for ‘D’s summary return to Germany, invoking the Hague Convention provisions.

During proceedings, ‘M’ resisted the application on the basis of ‘F’s consent to the move and the grave risk of harm to ‘D’ as stipulated in Article 13(b) of the Convention. The case involved detailed assessments of the parties’ statements, evidence, and an expert report concerning ‘M’s mental health.

The legal principles that permeate this case are primarily:

  1. Consent: Under the Hague Convention, consent must be clear, unequivocal, and real pertaining to the child’s relocation. It forms the crux of a fact-specific determination, as seen in the cases of Re M (Abduction: Consent: Acquiescence) [1999] 1FLR 171 and PJ (Children)(Abduction: Consent) [2010] 1 WLR 1237.

  2. Grave Risk of Harm (Article 13(b)): There exists an exception to the child’s return if it would expose them to physical or psychological harm or an intolerable situation, a principle observed in Re E (Children: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144, and Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 FLR 442.

  3. Protective Measures: Where there is a risk of harm, courts must consider whether protective measures would mitigate harm to the child upon return to their home country.

  4. Discretion to Return: Even where wrongful removal is established, the court retains discretion not to order a child’s return, factoring in the best interests of the child against Convention policies, per M and Another (Children) (Abduction: Rights of Custody) [2007] UKHL 55; [2008] 1 AC 1288.

Outcomes

In this case, the key outcomes were informed by the specific evidence presented. After considering M’s actions, the accompanying conduct by F which included assistance in packing and shipping M’s and D’s possessions, along with communication patterns post-departure, the Court found that F had indeed consented to the relocation. This negated the need for an ordered summary return based on wrongful removal.

Moreover, the Court found the Article 13(b) defense to be well-established, considering the potential grave risk of harm to D, given the severe mental health concerns faced by M as substantiated by the evidence of Dr. Lucja Kolkiewicz. A return to Germany, either alone or with M, would place D in an intolerable situation due to the significant chance of M’s mental health deteriorating. The proposed protective measures were not deemed sufficient to mitigate these risks.

Conclusion

The judgment in this matter serves as a testament to the careful application of specific legal principles under the Hague Convention while emphasizing the importance of considering the child’s welfare above all. It reiterates the court’s task of considering the factual matrix holistically in determining consent and grave risk of harm. Most importantly, it upholds the Court’s discretionary power to prioritize the child’s best interests in light of the inherent risks and protective measures. The case illustrates how mental health concerns play a significant role in Hague Convention proceedings, expanding beyond the more commonly discussed physical harm parameters to include psychological well-being and associated risks.

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