Z v D: A successful Article 13 defence

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It sometimes seems that the Article 13(b) 'defence' (risk of harm) is raised automatically by every parent facing a summary return application, as if it is 'always worth a try'.

OK, that is probably being a bit cynical, but it certainly seems to me to be comparatively rare for such a defence to be successful, based upon my experience of reading (or at least scanning) most of the reported Hague cases.

But it was successful in the recent case Z v D (Art 13 Refusal of Return Order), as that title indicates.

The essential background to the case was as follows:

1. The parents met in Brazil in 2007 and commenced cohabiting in 2008. The child was born in that year, and is therefore now nearly 12 years old.

2. Before her birth, the father moved to England for work. The parties were married in 2011 and the father remained in England by reason of his job. It had been intended that the mother and child would join him here, but the parents' relationship broke down before that occurred.

3. The parents were divorced in 2015. Sole custody of the child was granted to the mother and the parents agreed between them that she would spend one month per year with the father in England.

4. Pursuant to that agreement the child arrived in England on 8 December 2019. She was due to return to Brazil on 2 January 2020.

5. The father contended that the moment that the child's flight to England left Brazil he received a telephone call from the maternal grandmother and the maternal aunt begging him to keep her in England for her own safety and alleging that she was the subject of regular "beatings" by her mother at home in Brazil.

6. The mother denied the allegations.

7. The father contended that about ten days after her arrival in England the child showed increasing anxiety about the prospect of returning to Brazil. He alleged that when he raised the matter with her, the child told him of a number of serious abuses that she had suffered at the hands of the mother, including being beaten with an electric cable and being tied to the bed.

8. Following these allegations being made the father contacted social services in this jurisdiction. He contended that he was advised by social services that he should not return the child to Brazil.

9. The father contacted the mother in January, and told her that he would not be returning the child until the allegations were resolved. He claims that the mother responded by making threats towards him, and to disappear with the child if she returned to Brazil.

10. The mother issued her Hague application in April. A Cafcass report was ordered, and the Cafcass officer reported a number of allegations of abuse by the child, including regular beatings by the mother. The Cafcass officer expressed a clear risk of harm if the child were to be returned to her mother's care. The child also made it quite clear that she wished to remain in England with her father.

11. The mother offered undertakings, including not to physically chastise the child if she were returned to her care. However, there were concerns about the ability of the Brazilian authorities to take any necessary protective measures, due to the effect of the Covid-19 pandemic.

The application was heard by Mr Justice MacDonald. After setting out the relevant law, he came straight to the point:

"I am satisfied that, making a reasoned and reasonable assumption as to the maximum level of risk to [the child] and considering the protective measures available to meet that risk, there is a grave risk that returning [her] to the jurisdiction of Brazil would expose her to physical or psychological harm or would otherwise place her in an intolerable situation for the purposes of Art 13(b) of the 1980 Convention. Having so concluded, I am satisfied it would not be appropriate to proceed to exercise my discretion to make a return order in those circumstances. For the sake of completeness, I am also satisfied that [the child] objects to being returned to Brazil for the purposes of Art 13 of the 1980 Hague Convention and has attained an age and degree of maturity at which it is appropriate to take account of her views. Again, I am satisfied that it would not be appropriate to exercise my resulting discretion to make a return order."

Mr Justice MacDonald then set out his reasons for coming to this decision, which I will not detail here, as they are pretty much what one would expect from the foregoing, including the credibility of the child's allegations and the insufficiency of the mother's undertakings. However, I think that the last paragraph of his judgment is significant (my emphasis):

"I accept that this result means that a child who has been wrongfully retained following a proposed holiday in England will not now be returned to her jurisdiction of habitual residence pursuant to the provisions of the 1980 Hague Convention. Within this context, and having regard to the clear policy objectives of the 1980 Convention, it is important to emphasise that my decision is one that has been reached on the very particular and, indeed, very unusual facts of this case. Namely, that the child's holiday to England was also the method by which that child was able to alert her other parent and thereafter the authorities in this jurisdiction that she was at a credible and high risk of serious physical and emotional abuse upon return (as [she] herself said, "so when I came to the UK I felt more comfortable to say about this, because she would be far") and that, again in the very particular circumstances of this case, the protective measures proposed are not sufficient to protect her from that credible and high risk were she to be returned to the jurisdiction of her habitual residence, in addition to the child's objection. In these circumstances, as I have already made clear, I do not consider this to be a paradigm case of wrongful retention following a holiday and I am satisfied it is not a case of forum shopping on the part of the father."

You can read the full judgment here.