The High Court considered the scope of the 'intolerable situation' that it must consider under Article 13(b) of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the 1980 Hague Convention).
Background:
This case concerned two boys aged nine and eleven. Their parents are both American citizens who married in 2010 and officially divorced in 2018. They always lived in the US until the mother moved with the boys to the United Kingdom (UK) in August 2022. None of the family members had any connection with the UK whatsoever.
After their separation, there were ongoing difficulties with contact arrangements. In March 2021, Child and Youth Services (CYS) investigated an allegation of abuse against the father but determined the allegation to be unfounded. However, in June 2021, the mother stopped all contact between the boys and their father. The mother continued to raise further allegations of sexual abuse towards both boys by the father, which the CYS also considered to be unfounded.
In April 2022, the father issued an emergency petition for custody and his application was heard alongside the mother's allegations of sexual abuse. A court in Pennsylvania found that the joint custody order should remain in force. Without informing the father, she then travelled to England with the children. On arrival in the UK, the mother immediately claimed asylum on behalf of herself and the children which was refused by the Home Office in 2023.
In the meantime, in the US, a court order was made granting the father sole legal and physical custody of the boys. In March 2023, the father made an application for summary return in this jurisdiction under the 1980 Hague Convention which the mother appealed. The mother resisted the making of an order for the return of the children under Article 13(b) and/or on the basis of the children's objections under Article 13(2).
Decision:
The Court first considered the sexual abuse allegation which was not backed by sufficient evidence to meet the reasonable degree of likelihood standard. Then the Judges turned to the intolerable situation and found that the children would not be at risk of a grave risk of physical or psychological harm if returned to the US. Sir Andrew McFarlane P noted that "They are at risk of harm whether they stay here or are returned, but a return to the US is the less intolerable option. There would be short-term upset, but with the prospect of resolution." This dilemma had been entirely generated by their mother's actions. No 'intolerable' aspect of the children's situation arose from any action or risk of harm relating to their father. The mother's case of an 'intolerable situation' failed.
The Court also found that it was not necessary to determine the intolerability of a child's situation upon their return to their home state through a comparison with their situation in the UK. However, the Court did observe that, when considering Article 13(b), it is not undertaking a welfare evaluation. To compare and assess both situations that a child faces would inevitably draw the Court towards a welfare determination and, to take that approach, would be wholly contrary to the 1980 Hague Convention. The Judge expressly refused to enter into the discussion as to whether the focus should be on both the home and host state or just the home state but noted that there was not much authority on the matter.
Regarding the interplay between abduction and asylum proceedings, the High Court noted that they could determine a Hague Convention application and make a return order even where there are parallel asylum proceedings. McFarlane P noted the importance of some documents in those parallel proceedings such as the guidance from the Home Office, Guidance from the Senior President of Tribunals on appeals or Practice Guidance: Case Management and Mediation of International Child Abduction Proceedings.
Implications:
This decision provides good guidance on the scope of an 'intolerable situation' within the meaning of Article 13 (b) of the Hague Convention. The Court made it clear that the focus of Article 13(b) is the potential risk the child would be exposed to on their return but that courts are not undertaking a welfare evaluation.
In addition, the Court also made some observations and gave guidance on the interplay between abduction and asylum proceedings.
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