June 10, 2011 by Rosalind English, UK Human Rights Blog
In the matter of E (Children) [2011] UKSC – read judgment
The Supreme Court has ruled that two girls, aged seven and four respectively, be returned with their mother to Norway, after she had removed them without the father’s consent. The decision was made largely under the Hague Convention on the Rights of the Child which gives more specific direction to the courts in abduction cases than the European Convention on Human Rights, although, as the Supreme Court observed, a little more reassurance that the necessary safeguards can be enforced in the destination country would make it easier for the courts in the requesting country to make orders protecting the interests of the child.
The following summary is based on the UK Supreme Court’s press release. The numerals in bold refer to paragraph numbers in the judgment.
The case
The children had lived all of their lives in Norway until September last year when their mother brought them to England with a view to staying here permanently. The father was not asked and did not consent to their removal from Norway. The mother had an older daughter, Tyler, who is nearly 17 and also lived with the family in Norway, but left Norway for England shortly before her mother.
The father applied to the Norwegian central authority under the Hague Convention on the Civil Aspects of Child Abduction 1980 for the children to be returned to Norway. Article 12 of the Hague Convention requires a requested state to return a child forthwith to her country of habitual residence if she has been wrongfully removed in breach of rights of custody. But Article 13 provides three exceptions, one of which is that the child should not be returned if
there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation
The mother, with Tyler’s support, argued that this exception applies. She made allegations against the father which, if true, amount to a classic case of serious psychological abuse. She recounted incidents of physical violence towards other people, property and the ill-treatment of the family pets. There was also psychiatric evidence that the mother is suffering from a mental disorder which would deteriorate if she had to return with the children to Norway.
Although the father denied some of these allegations, he did admit to bouts of anger, and to killing two of the family pets, a cat and a rabbit. But he undertook to vacate the family home and not go within 500 metres of it; and he said would pay household costs and provide money for child support. He also promised that he would not remove the children from the mother’s care.
The judgment
The Supreme Court, like the Family Court and the Court of Appeal before it, unanimously dismissed the mother’s appeal.
Reasons for the judgment
The case law of the European Court of Human Rights indicates that the right to respect for family life in article 8 of the European Convention must be interpreted in the light of the Hague Convention and the UN Convention on the Rights of the Child. The best interests of children have two aspects:
1) to be reunited with their parents as soon as possible so that one parent does not gain an unfair advantage over the other through the passage of time; and
2) to be brought up in a “sound environment” in which they are not at risk of harm[52].
The President of the Strasbourg court has recently acknowledged extra-judicially that
the logic of the Hague Convention is that a child who has been abducted should be returned to the jurisdiction best-placed to protect his interests and welfare, and it is only there that his situation should be reviewed in full [25].
Violence and abuse between parents may constitute a grave risk to the children. But where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is bound to be on the sufficiency of any protective measures which can be put in place to reduce the risk.
In this case, the trial judge was satisfied that medical treatment would be available for the mother and that there were legal remedies to protect the children should they be needed. It is not the task of an appellate court to disagree with the trial judge’s assessment [49].
A full analysis of this case will follow shortly.
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