Case Law Analysis: Hague Convention 1980 Article 13(b) Exception in XK v JY (EWHC-Family 2023)

Citation: [2023] EWHC 2996 (Fam)
Judgment on

Introduction

The case of XK v JY (EWHC-Family 2023) provides an illustrative example of the application of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Hague Convention 1980) within the context of the UK legal system. Central to the case is the consideration of Article 12 of the Hague Convention, which mandates the return of children wrongfully removed from or retained outside their country of habitual residence, and the application of the exception to this rule under Article 13(b). This analysis delves into the key topics discussed in the judgment and elucidates the legal principles that underpin the court’s decision-making process.

Key Facts

The key facts of the case involve the wrongful removal of a child, ZK, from Slovakia to England by the child’s mother. The court was thus presented with an application for ZK’s summary return to Slovakia by his father under Article 12 of the Hague Convention 1980. The mother raised a defense under Article 13(b), asserting that the child’s return would expose them to grave risks of harm or place them in an intolerable situation, based on allegations of domestic violence by the father.

The court’s analysis operated within the legal framework established by the Hague Convention 1980 and was guided by various legal precedents, including cases assessed by the UK Supreme Court:

  1. Threshold of ‘Grave Risk’ under Article 13(b): Citing Re E (Children) [2011] UKSC 27 and Re S [2012] UKSC 10, the court underscores that the defense under Article 13(b) has a high threshold. To successfully invoke this defense, the evidence must demonstrate a grave risk of harm to the child upon return.

  2. Assessment without Fact-finding: Following KG v JH/ Re IG [2021] EWCA Civ 1123 and Re A (Children) [2021] EWCA Civ 939, the court must scrutinize the allegations of harm to ascertain whether—if proven true—they would suffice to establish a grave risk without delving into fact-finding.

  3. Role of Protective Measures: The case law underscores that protective measures available in the child’s country of habitual residence are pivotal in countering the potential harm identified under Article 13(b). The court, relying on principles established in PvO [2023] EWHC 2128 and E v D [2022] EWHC 1216 (Fam), carefully scrutinized the sufficiency of undertakings offered by the applicant and protective measures from the Slovak authorities to ameliorate the risk.

  4. Presumption in Favor of Foreign Authorities: The court adhered to the principle, as demonstrated in Re H (Children) [2003] EWCA Civ 355 and G v D [2020] EWHC 1476 (Fam), which presumes that foreign authorities are competent to protect children unless compelling evidence indicates otherwise.

  5. Discretionary Nature of Return Order: Even if the grave risk is established and protective measures are considered, the return order remains discretionary, allowing judges to weigh the specifics of the case in rendering a decision.

Outcomes

The court determined that the mother met the burden of establishing a grave risk of harm to ZK. However, the court was persuaded that the combination of undertakings provided by the father and the protective measures available in Slovakia was sufficient to safeguard against the identified risks. The court thus ordered the child’s return to Slovakia, reinforcing the principle of expeditious resolution of international child abduction cases to enable the courts of the child’s habitual residence to make informed decisions about the child’s welfare.

Conclusion

The judgment in XK v JY (EWHC-Family 2023) reaffirms the complexity of cases governed by the Hague Convention 1980, particularly when defenses under Article 13(b) are raised. While the court acknowledged that allegations of harm must be given serious consideration, the robustness and availability of protective measures within the requesting state were decisive in mitigating the risks of harm and supporting the summary return of the child. The case emphasizes the intricate balance that courts must strike between the immediate safety of the child and the broader, long-term considerations for their well-being through established judicial processes in their home jurisdiction.

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