As Mostyn J (as he then was) commented in B v B [2014] EWHC 1804: ‘The Hague Convention of 1980 is arguably the most successful ever international treaty.’ 

Mani Singh Basi

Mani Singh Basi

In England and Wales, there have been many cases in the Supreme Court and Court of Appeal raising interesting topics about aspects concerning child abduction and the defences/exceptions to a summary return. The Hague Convention on the Civil Aspects of International Child Abduction (the convention) sets out a swift, cooperative framework for returning children wrongfully removed or retained across international borders. Its intent is pragmatic and aimed at preventing the harmful impact that arises from abduction, and ultimately to allow welfare decisions to be made by the courts in the child’s habitual residence. As the Hague Conference’s recent Conclusions & Recommendations from the eighth special commission make clear, significant gaps remain in our understanding of how the convention operates in practice, especially over the longer term. 

Filling these gaps goes to the heart of whether the convention achieves its purpose and ultimate objectives. Research is being undertaken by professors Marilyn Freeman and Nicola Taylor which addresses the experiences of families affected by international parental child abduction after a return decision has been made. This study responds directly to the call in the Conclusions for evidence-based research. This is vitally important research that raises interesting questions about the knowledge gaps following return decisions.

In England and Wales, a person embarking upon a convention case is seeking the return of a child/children, usually to their state of habitual residence. What happens after a return decision is made is mostly unknown. Lawyers, for example, may not hear from clients again because return proceedings operate at a quick pace and, if the child is returned, the client must then engage in the legal system in that state. Further, when a client with legal aid in England and Wales succeeds and a return happens, that legal aid eventually ends. Communication between lawyers and the client, therefore, naturally ceases. Consequently, unanswered questions sometimes arise regarding speculation about what happened next. There may be welfare or substantive proceedings concerning where the child should live in the home state, including a relocation application to return lawfully to England and Wales, but the outcome may not necessarily be communicated back. Further, whether protective measures/undertakings have been complied with (and, if not, the consequences) is not generally known. 

This knowledge gap probably exists because the convention was designed as an expedited process (Article 11 stipulates a six-week deadline). The convention does not provide a welfare determination forum. Courts focus narrowly on whether a child was wrongfully removed/retained and whether any of the limited exceptions (for example, grave risk of harm) apply. Long-term outcomes of returned children, including whether protective measures were implemented or effective, can be scrutinised within proceedings, sometimes with the assistance of a court-appointed expert, but what actually happens after the return decision, whether the child returns or not, is not usually monitored consistently. 

In England and Wales, in particular in Article 13(b) cases where domestic abuse is raised, there has been a growing focus on considering protective measures. Per Moylan LJ in Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415: ‘Protective measures need to be what they say they are, namely, protective. To be protective, they need to be effective.’ Further, when addressing risk, the court must consider the ‘nature, detail and substance’ of the allegations made to determine the maximum level of risk to the child. That will involve ‘reasoned and reasonable assumptions’ about the level of risk (Re A-M (A Child: 1980 Hague Convention) [2021] EWCA Civ 998). The court needs to examine, in concrete terms, what these children will actually face on return (see Re GP [2017] EWCA Civ 1677). This assessment takes place pre-return – that is, within the convention return proceedings. Therefore, the current research is particularly relevant to the use and utility of protective measures. 

For lawyers in this area, the absence of longitudinal, outcome-oriented data makes it difficult to ascertain:

  • The actual outcome of protective measures, which is particularly important in cases where domestic abuse is alleged in the context of Article 13(b);
  • The impact of a finding of abduction on any subsequent welfare proceedings; and
  • The percentage of return orders which lead to subsequent litigation and repeat abductions.

The lack of outcome data is especially problematic in the context of domestic abuse cases. There are many judgments where Article 13(b) is relied upon, and more data and tracking of what happens after a return decision involving grave risk/intolerable circumstances would be useful in better understanding:

  • Whether protective orders were enforced in the child’s habitual residence;
  • How litigation was approached, including ascertaining the voice of the child; 
  • How long protective measures lasted; and 
  • Any other issues that arise. 

To help address these issues, and further to their earlier research, professors Freeman and Taylor are currently undertaking a research project approved by the Liberal Arts and Sciences Research Ethics Committee at the University of Westminster, London. Two online surveys are available for completion (in English, before 28 March) by:

 

Mani Singh Basi is a barrister at specialist family law set 4PB, London

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