Alexandra Parris of Osbornes' Family Department reports on the important new Supreme Court case of Re E in relation to child abduction.

The Supreme Court decision in Re E (Children) (FC) [2011] UKSC 27 has clarified the position in respect of the appropriate test to be applied when assessing an article 13 (b) harm defence under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”). In other words, how to deal with arguments that returning a child would create a grave risk of physical or psychological harm or put the child in an intolerable situation. Within their judgment the Supreme Court analysed the impact of the European Court of Human Rights (“ECtHR”) decision in Neulinger and Shuruk v. Switzerland [2011] 1 FLR 122 upon the Hague Convention.  The Neulinger case had raised questions as to whether the threshold for refusing returns of children had been lowered.

Re E concerned a claim by the mother that the father was verbally and physically violent and as such under article 13b of the Hague Convention a summary order for the return of the two young children from the UK to Norway should not be granted.

The Supreme Court unanimously determined that the mother’s defence under article 13b of the Hague Convention was not to be upheld and her appeal was dismissed. Within their judgment the Supreme Court concluded that Neulinger does not require a departure from the normal process and that the exceptions to the obligation for return are by their very nature restricted in their scope. However, the Court did acknowledge that it is recognised violence and abuse between parents may constitute a grave risk to the children.

The concept of “best interests” of the children and its role within the context of Hague Convention proceedings was closely examined within the judgment, with the Supreme Court clarifying that the best interests of children generally and the subject child is indeed a primary concern in the Hague Convention process. The Court was in agreement with the European Court of Human Rights that best interests have two aspects within this context: (1) to be reunited with their parents as soon as possible; and (2) to be brought up in a “sound environment” in which they are not at risk of harm.  The Supreme Court emphasised that the Hague Convention is designed to strike a fair balance between these two separate interests.

Watch this space for a detailed analysis of Re: E

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