The Court of Appeal held that there were two stages to the Article 13 defence: first, the judge had to be satisfied that the child had a mature objection and second, the judge had to exercise his or her discretion as to whether or not to return the child. Here it was clear that the child was mature and objected to being returned. However, the judge’s decision not to return the children was tainted by the misunderstanding of the facts.

A British mother brought her daughters (aged four and seven) from Norway to England against the wishes of her Norwegian husband. When he applied under the Hague Convention 1980 for the children’s return, the wife asserted that Article 8 European Human Rights Convention and Article 3.1 United Nations Convention on the Rights of the Child required the English court to examine fully whether it was in the best interests of the children to order their return to Norway.

The Hague Convention 1980 had been designed with the best interests of children generally, and the individual child concerned, as a primary consideration. It was thus compatible with the ECHR and the UN Convention. The national court did not order return of the child automatically and mechanically, but examined the particular circumstances of the child to ascertain whether a return accorded with the Convention. That was not the same as a full-blown examination of the child’s future.

The parents were Jewish, living in Israel. Without the father’s consent, the wife took the children to live in England. The father initially took the case to a religious court but it was six months after the abduction before he invoked proceedings under the Hague Convention in London. Did this amount to acquiescence? The Court of Appeal held that it did. The House of Lords thought otherwise and overturned the decision. It was ordered that the children be returned.

The test for acquiescence is subjective, and depends on the state of mind of that particular wronged parent.

• All the facts of the case must be considered.
• The burden of proof is on the abductor.
• If the wronged parent, by their words or actions, clearly led the abducting parent to believe they would not take action to seek the child’s return, this will amount to acquiescence.

The parents were from and lived in Zimbabwe. When they separated, the two children remained in Zimbabwe with the father. On a contact visit, the mother brought the children to the UK and claimed asylum. The father found out six months later but did nothing until a year had passed. The trial judge and Court of Appeal ordered the return of the children. However the House of Lords ruled that the children could remain in the UK.

Where a child is settled into their new environment, a judge still has discretion under the Hague Convention to return the child. But the child’s rights and welfare must take priority.

A British mother brought her two-year-old son from Australia to England without the consent of the Australian father. The mother relied on the Article 13b defence against the father’s application to return the child. The father had serious drug and alcohol problems and the mother alleged that he was violent. The mother was suffering from Battered Women’s Syndrome (a form of post-traumatic stress disorder) and the evidence suggested that a return to Australia would trigger clinical depression in the mother, which would impact on the child.

In Re E (see earlier) the Supreme Court had held that the terms of Article 13b were plain, did not need elaboration or gloss; and that they demonstrated the defence was not widely available. Where there were disputed allegations of domestic violence the court should ask whether, if they were true, there would be a grave risk that the child would be placed in an intolerable situation. If there was a grave risk, then the court must ask how the child could be protected against the risk. If the child could not be protected, then the court should consider whether the disputed allegations were true. At first instance, the judge had concluded that the protective measures suggested by the father would not protect the mother (and thus the child). The allegations made by the mother could not reasonably be disputed. The defence was successful.

(Note that Re E allows the defence to be used where the anxieties of a parent are not objectively reasonable if those anxieties are so serious that they would destabilise that parent so much that the child would be placed in an intolerable situation.)