Children and Conflicts between Courts

In the Matter of S (a Child) [2012] UKSC 10 (14 March 2012) 

This case is about a relationship which became sour. A two-year old child, “W”, was involved and the UK Supreme Court unanimously declined to return the child to Australia where the father lived. The case is also important with respect to the continuing dialogue between the UK Supreme Court – which has sent a clear message to Strasbourg that some of its ideas are “entirely inappropriate” – and the European Court of Human Rights. 

The present case

The mother, a dual British and Australian national, went to Australia as a nurse with her British husband but the couple divorced.

After her marriage failed, the mother (M) began to cohabit with another man: the father (F) – an Australian. W was born as a result of this relationship.

Right from the outset in 2008 – when they began to cohabit – M and F had a tempestuous relationship. F had a serious drug habit and in the mid-1990s he had been an intravenous heroin user. M, because of her earlier failed marriage, had a history of mental illness: she received psychotherapy and took medication for chronic anxiety and depression.

M became pregnant with W in February 2009. After quitting his heroin habit in the 1990s, F descended into drug use again because financial disaster struck his failing estate agent’s business. By the beginning of 2011 the relationship had fallen apart and M claimed that she saw F shooting up in the garage in the car. Hence, M involved the police. The subsequent email and text exchange between the couple was serious enough for the Australian police to obtain an ex parte Apprehended Violence Order on 27 January 2011 and a few days later on 2 February, in breach of F’s custody rights, M removed W from Australia to the UK.

M resisted F’s application for an order for W’s summary return to Australia under Article 13(b) – that “there is a grave risk that his … return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” – of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the Hague Convention”).

Earlier on, the Court of Appeal (Thorpe, Longmore and McFarlane LJJ) had made an order pursuant to Article 12 of the Hague Convention and section 1(2) of the Child Abduction and Custody Act 1985 for W to be returned to Australia; in doing so the Court reversed Charles J’s decision who had declined to return W to Australia. Reunite Child Abduction Centre intervened in the Supreme Court proceedings.

The present case provided the Supreme Court with an opportunity to clarify the effect of its earlier ruling in E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 which was connected to founding a defence on a mother’s subjective perception of risks under Article 13(b) of the Hague Convention. In that case the Court held that, on the child’s return, regardless of whether the mother’s anxieties were reasonable or not if the effect of such anxieties would create an intolerable situation for the child, then the child shouldn’t be returned.

In E (Children) the Supreme Court ruled that in principle a defence under Article 13(b) of the Hague Convention could be founded upon a respondent mother’s anxieties about a return with the child to the state of habitual residence. The Court decided that the defence could be founded where the anxieties were not based upon objective risk to the mother but were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point where the child’s situation would become intolerable. The Court of Appeal failed to recognise this and in turn failed to answer the critical question – “what would happen if the child was returned, with the mother?” – correctly.

In answering this question, Lord Wilson (with whom Lady Hale and Lords Phillips, Mance and Kerr agreed) explained at paragraph 34 of the judgment:

If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned.

The Supreme Court also noted that the Court of Appeal made little reference to the history of M and F’s relationship and at paragraph 35 the Supreme Court explained that the Court of Appeal:

[P]aid scant regard to the unusually powerful nature of the medical evidence about the mother, in particular of her receipt of regular psychotherapy while in Australia. This conferred an especial authority on MsMacKenzie’s report, of which the court scarcely made mention. Overarchingly, however, it failed to recognise that the judgement about the level of risk which was required to be made by article 13(b) was one which fell to be made by Charles J and that it should not overturn his judgement unless, whether by reference to the law or to the evidence, it had not been open to him to make it. Charles J was right to give central consideration to the interim protective measures offered by the father. But his judgement was that, in the light of the established history between the parents and of the mother’s acute psychological frailty for which three professionals vouched, they did not obviate the grave risk to W. It must have been a difficult decision to reach but, in the view of this court, it was open to him to make that judgement; and so it was not open to the Court of Appeal to substitute its contrary view. The fact that Charles J had not received oral evidence did not deprive his judgment of its primacy in that sense. The decision of the House of Lords in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80, concerned the Court of Appeal’s reversal of a judge’s discretionary dismissal of an application under the Children Act 1989 for a specific issue order that a child be summarily returned to Saudi Arabia.

Dialogue with Strasbourg

Apart from correcting the Court of Appeal, the Supreme Court also had rather strong obiter comments for its counterparts in Strasbourg who in the Neulinger v Switzerland (41615/07) [2011] ECHR 1053 case – where a Swiss couple moved to Israel and the mother later abducted the child and removed it to Switzerland – took the view that an in-depth examination of the entire family situation was required by a court considering an application under the Hague Convention:

In the present appeal Reunite has drawn to this court’s attention that on 13 December 2011, in X v Latvia (Application No 27853/09), the ECtHR (Third Section) has unfortunately reiterated, at para 66, in terms identical to those in para 139 of the Neulinger case, the suggested requirement of an in-depth examination in the determination of applications under the Hague Convention. With the utmost respect to our colleagues in Strasbourg, we reiterate our conviction, as Reunite requests us to do, that neither the Hague Convention nor, surely, Article 8 of the European Convention requires the court which determines an application under the former to conduct an in-depth examination of the sort described. Indeed it would be entirely inappropriate.

Thus, the Supreme Court did not share Strasbourg’s enthusiasm that in instances the ECHR will trump the Hague Convention and the expectation of almost automatic return will have to take second place to the principles of human rights.

Strasbourg has been massively criticised of late and perhaps rightly so. The Court is an old fashioned Churchillian institution some say, it’s out of touch and needs a reality check. But critics will have to cede some ground people such as David Hodson who, shortly after the arrival of Grand Chamber’s July 2010 decision in Neulinger, argued that:

The controversy over the decision will continue. What cannot be controverted is that some countries … take an unacceptably long time to deal with child abduction litigation including appeals. As a consequence, the life of the child has genuinely moved on. The answer is not to criticise the European Court of Human Rights. The real answer is to have a system which enforces and penalises those countries who are so slow to return abducted children as to work against the best interests of children.

I suppose as observers we can look forward to what the Major Pundits in this discourse have to say about it all!

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Children, ECHR, Hague Convention, UKSC and tagged , , , , , . Bookmark the permalink.

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