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The Hague Convention, Child Abduction, and the Defences against that Presumption: Part 2

September 19, 2023 By Steven Bain Family Law

In the previous blog in this series, we had looked into the Hague Convention on the Civil Aspects of Child Abduction.

We outlined what may be considered as child abduction and where the Convention could be applied to protect against this.

In this blog we are going to look at a recent decision of the Inner House of the Court of Session. The opinion in this case was delivered by Lady Wise who is a very highly regarded voice in civil family law matters.

The Defences this matter relates to are found in Article 13(b) of the convention which states;

That the child does not need to be returned if it can be established that “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.

Facts of the Case

The case is between AD (the father) and SD (the mother), and related to their two children, aged 7 and 4.

The girls were born in Illinois and lived there from birth until June 2022. The father is a US citizen and the mother was born and raised in Scotland, and has UK, US and Irish passports.

In June 2022 SD took the children to Scotland with the permission of AD for a holiday, with them due to return on the 14th August 2022. SD did not return, and that is what triggered the action eventually coming before the Court of Session.

It was agreed that under Article 13(a) of the convention, there had been a wrongful retention of the children as AD would have been exercising his right of custody had it not been for the retention of them by SD.

Initially AD raised an action in Illinois for the dissolution of the marriage and to seek the majority of parenting time be allocated to him.

Shortly after this AD raised a second emergency action for the return of the children into his care, and at a hearing that SD attended remotely, the Court decided that she had in fact abducted the children and ordered them to be returned.

SD failed to comply with this order, and eventually the petition before the Court of Session was raised.

Outer House – Court of Session

Initially the case was heard by the Outer House of the Court of Session. A vast amount of text messages were provided in evidence which showed an intention to humiliate, degrade and in some cases frighten SD, including expressing misogynistic views. It was SD’s position that the domestic abuse to which she was exposed would have such a hugely significant detrimental impact on her wellbeing, that she would not be able to care for the children effectively. However the Lord Ordinary found that it was not established that if the children were returned to the US then they would be exposed to grave risk or harm. It was further concluded by the Lord Ordinary that the Illinois Courts had the power to protect the children and that there were sufficient legal remedies available to SD in Illinois should the domestic abuse continue. Ultimately it was decided that the children should be returned to the US.

Inner House Court of Session

Next, a reclaiming motion was made by SD, and the case was brought before Lady Wise in the Inner House of the Court of Session for further consideration and determination.

Lady Wise noted that the onus rests on the party who is accused of abducting the children to prove their defence of their actions (D v D 2002 SC 33), however she also noted that when a “grave risk” defence founding on domestic abuse is to be pled, then the position is more nuanced (In r E [2012] 1 AC 144).

The Court must examine such matters in stages. Firstly, if the allegations are true, then would there be grave risk of the child being exposed to physical or psychological harm, or otherwise placed in an intolerable situation?

If the answer is yes, then the Court must ask how can the children be protected against that risk?

As part of the first stage the nature and severity of the risk is to be examined, and the Court, as part of this exercise, must assume the allegations to be true. Only then can the Court judge whether the available protective measures are likely to be sufficient to protect the children from harm.

The role of any risk assessment in any field is to weigh the severity of a risk against the likelihood of that risk occurring, and then to put in place measures to prevent it happening, and run the same assessment again, and what Lady Wise suggests in this matter is no different.

Lady Wise refers to this as a delicate “slide rule” type balance between the assessed risk and the protective measure offered.

When looking at the case in hand directly, Lady Wise observes that “if there is a grave risk that the children would be placed in an intolerable situation as a result of the mother’s suffering, then that may be sufficient. The Crucial question is not whether the parent’s anxieties are reasonable, but what will happen if the children are returned with her. If she will suffer such anxieties that the effect on her mental health will create an intolerable situation for the children, they should not be returned.”

The Facts Re-visited

Lady Wise noted that there were allegations of physical harm against SD, allegations of sexual assault, allegations of verbal abuse of SD in front of the children, AD threatening to kill himself in front of the children, and on occasion proceeding to the basement to retrieve his gun.

Lady Wise noted that the Lord Ordinary’s analysis was lacking an assessment of the severity of the risk. All evidence relating to the above, including the volume of text messages, and undisputed evidence, and an objective view of the distress all of this caused SD “required to be fed into the risk assessment at stage one”.

That conclusion on the severity of the risk would then have informed the second stage, and the type of protective measures that were available, and whether they were sufficient or not to reduce the risk effectively.

So the Court now has to ask what preventative measures would be sufficient to prevent AD from continuing with the pattern of offending behaviour?

The was indisputable evidence before the Court that AD had already repeatedly breached an order put in place by the Illinois Court intended to prevent this behaviour, and had continued to harass SD.

This is where the initial decision by the Lord Ordinary fails.

Lady Wise concluded that the risk of both physical and psychological harm in the case was extremely serious should the children be returned as suggested by the Lord Ordinary.

The Court would need to be confident that any measures put in place in Illinois would be robust enough to deter AD from his behaviour with potentially irreparable consequences.

The Court decided that as a result of the evidence, and AD’s behaviour, they were unable to confidently conclude that AD would comply with any protective measures put in place in Illinois, and that the grave risk could not be mitigated.

Lady Wise goes on to state “that it would be inconceivable that a return would be ordered given the material before us and we shall refuse so to order.”

She did go on to state that it is very much a case of each matter before the Court of this nature must turn on its own facts, and it is usually the case that a swift return of the children is the correct response, however this new case law heralds a far more nuanced approach to be taken by the Courts before any such return of children is ordered.

This certainly does not simplify the law, but what it does signify is greater protection to parties who are suffering abuse, and consideration of the direct effect this behaviour and its consequences will have on children of the parties, and should be welcomed on that basis.

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