Court Orders Child's Return to New Zealand Despite Mother's Art 13(b) Defense

Citation: [2024] EWHC 489 (Fam)
Judgment on

Introduction

In the matter of Re PZ (A Child) (Hague Convention: Art 13(B)), the England and Wales High Court (Family Division) was tasked with considering an application under the 1980 Hague Convention for the return of a young girl to New Zealand. The court’s determination hinged on whether the Art 13(b) exception was established – specifically, whether the child’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation.

Key Facts

The case involved a cross-border child custody dispute following a breakdown in the relationship between the girl’s parents. The mother, a British citizen, had lived in New Zealand with the father, a dual New Zealand and Dutch citizen. After the parents separated, the mother, with the child, returned to the UK with the father’s agreement for a holiday but did not go back to New Zealand, prompting legal action.

Both parties accepted that the child was wrongfully retained in the UK and that, per the Hague Convention, the return should be secured unless an exception applies. The mother’s defense invoked Art 13(b), citing risks associated with her mental health, financial precariousness, and legal uncertainties related to her immigration status upon return.

The court’s decision drew upon established legal principles pertaining to the 1980 Hague Convention. These principles are encapsulated in Supreme Court jurisprudence, specifically Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144, and associated case law that clarifies the applicability of Art 13(b). The following offers an articulation of these principles:

  1. The defense must reach a grave level of risk, beyond the real or serious, with “intolerability” linked to the particular child and circumstances.
  2. The future scenario upon the child’s return, including protective measures, frames the assessment of risk or harm.
  3. Anxieties of the taking parent can found a defense under Art 13(b) if they would likely destabilize their parenting to the point of creating an intolerable situation for the child.
  4. The court assumes the risk at its highest and assesses protective measures’ sufficiency to mitigate harm, focusing on both efficacy and enforceability.
  5. The cumulative effect of allegations and potential risks should be considered, alongside available protective measures.

Applying these principles, the presiding judge examined evidence submitted by both parties and expert testimony on the mother’s mental health.

Outcomes

The court was not persuaded by the mother’s defense under Art 13(b). The key reasons included:

  • Adequate financial resources and protective measures provided by the father to mitigate the potential stressors upon return.
  • Assessment of the mother’s mental health, which concluded she was likely to have the resilience to cope with the stresses of returning, and the risks did not meet the grave level required by Art 13(b).
  • Recognition that the mother would be entitled to enter New Zealand on a tourist visa, giving her sufficient time to have her relocation application adjudicated by the New Zealand court.

Accordingly, the court ordered the child’s return to New Zealand by a specified deadline, with the judgment dictating the conditions and timeline for the return, as well as arrangements for financial support during the transition.

Conclusion

In Re PZ (A Child) (Hague Convention: Art 13(B)), the court’s meticulous application of Art 13(b) of the Hague Convention elucidates the stringent threshold required to establish the “grave risk” of harm or intolerable situation exception. Despite the mother’s significant concerns about the impact of returning on her mental health and caregiving abilities, along with other practical and legal challenges, the court emphasised the need for clear and present risks that were not sufficiently established. The judgment reinforces the primacy of the Convention’s intent to secure the prompt return of children wrongfully retained across border disputes, whilst also underlining the breadth of discretion accorded to judicial authorities in assessing the nuances of each case within the Convention’s framework.

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