C (A Child) (Abduction: Article 13(b)): Father's appeal from dismissal of return application allowed
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The Court of Appeal's judgment in C (A Child) (Abduction: Article 13(b)) contains, I would suggest, some useful guidance upon the (seemingly ubiquitous) Article 13(b) 'grave risk' defence to a summary return application under the 1980 Hague Convention, in particular a reminder that it is intended to be 'forward-looking'.
The case concerned a father's appeal from the dismissal of his application for the summary return of his eight year-old daughter, 'C', to Poland.
The facts of the case are briefly set out by Lord Justice Moylan in his leading judgment:
"The parents and C are all Polish nationals. It appears that the parents, and certainly C, have each always lived in Poland. In any event, they were living together in Poland prior to C's, admitted, wrongful removal on 17 September 2020. The mother and the father married in 2009...
"The mother petitioned for divorce in Poland in October 2019. Those proceedings are continuing and are also dealing with parental responsibility issues. In her statement for the 1980 Convention proceedings, the mother said that she and the father separated for a period between October and December 2019 and again from March 2020. Following the latter separation, she said that they agreed that the father "could have contact with (C) every other weekend". At some point the parents resumed living together.
"The mother and C travelled to England on 17 September 2020. This was undertaken secretly and the father was unaware that they had left Poland until about two weeks later. The move was clearly pre-planned and the mother appears to have immediately started living with someone in England."
The father issued his Hague application, and the mother raised her Article 13(b) defence. The application was heard by Mrs Justice Arbuthnot, in April. She found the defence made out, and therefore dismissed the application.
The father appealed, submitting, inter alia, that the Judge did not evaluate the nature or gravity of the risk to C arising from a return to Poland.
Moylan LJ found that there was no analysis in Arbuthnot J's judgment "of C's circumstances if she were to return to Poland nor of why or whether those circumstances would potentially expose C to a grave risk of harm. She did not look, with any degree of specificity, to C's situation as it would be following a return to Poland." The sole focus of the judgment was on the allegations about past events, as relied on by the mother: Article 13(b) is forward-looking.
"In summary," said Moylan LJ, "the Judge did not properly look to the situation as it would be if C was returned to Poland nor did she undertake a proper evaluation of the nature or gravity of the risk arising from a return in order to determine whether it was a grave risk as required by Article 13(b)."
Further to this, said Moylan LJ, "unless the court properly analyses the nature and severity of the potential risk which it is said will arise if the child is returned to the requesting State, the court will not be in a position properly to assess whether the available protective measures will sufficiently address or ameliorate that risk such that the grave risk required by Article 13(b) will not have been established ... This means that the Judge's analysis of whether the protective measures sufficiently addressed the prospective risk or risks was also flawed because it was not directed to the circumstances as they would be if C returned to Poland."
Accordingly, the appeal was allowed, and the case remitted for a rehearing.