AB v CD (Abduction; Undertakings)

The Father (“F”) seeks the return of E (7 years old) and G (3 years old) to Kazakhstan pursuant to the Hague Convention 1980. The Mother (“M”) removed the children, unlawfully as it is now accepted, from Kazakhstan to this jurisdiction on 29 December 2019.

M initially defended the application on the following grounds:

In her counsel’s skeleton argument for this hearing, M, correctly in my judgment, abandoned the habitual residence/rights of custody arguments. They were untenable in the light of the expert report on Kazakhstani law dated 24 February 2021. Accordingly, the remaining defences are E’s objections and Article 13(b).

In Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, Baroness Hale of Richmond observed at paragraph 48 that:

Moylan LJ stated in Re W (Abduction: Intolerable Situation) [2018] EWCA Civ 664 at paragraph 46:

“Child abduction is well-recognised as being harmful to children. As was noted in Re E (Children)

(Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144, [2011] 2 WLR 1326, [2011] 2 FLR 758, the 'first object of the Convention is to deter either parent … from taking the law into their own hands and pre-empting the results of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any disputes can be determined there'.”

Immediately after arriving in this jurisdiction, M made an application for asylum. The court was informed at a hearing on 20 October 2020 that the basis of her claim was that “she and the children are in danger from the father, and the father has threatened to remove the children from her care”. Although the documents from the asylum application have not been disclosed by M, and therefore are not before me, that brief description suggests that M has relied on similar facts and matters for her Article 13(b) defence as in her asylum claim. The children were dependent persons for the purpose of the claim; they did not make separate, free-standing claims. Thus, the claim falls within the fourth category at paragraphs 137-140 of Re G [2020] EWCA Civ 1185; the fact of an asylum application by the children’s mother does not create a bar to either the making or the implementation of a return order under the Hague

The Secretary of State was invited by the court to attend the PTR, but elected not to do so, setting out in a letter to the court the view that her involvement in the proceedings was unnecessary. At the PTR, F applied for disclosure of the documentation lodged by M in respect of her asylum claim. His aim was to establish whether there were inconsistencies between M’s presentation to the Home Office and to this court. That application was refused.

I was informed the day before this hearing started that M has recently been notified that her asylum application has been rejected, although she has appealed. Both parties agreed that there is nothing to prevent me, under the state of the law as it currently stands, from (i) determining this Hague Convention application and (ii) if appropriate, making a return order. However, I indicated at the outset that I would in any event permit further representations in the event that the Supreme Court decision materially affects this approach.

Finally, to complete this summary of the course of the proceedings:

F is 51 years old; M is 33. They are both Kazakhstanis, but of Chechen ethnicity. F is a construction manager by occupation. They were married in an Islamic ceremony on 6 June 2012, which is not recognised as a legal civil marriage in Kazakhstan. Under Islamic law, F was entitled to, and did, marry two other women in Islamic ceremonies. He has two other children, a 24-year-old son by a woman who was not his wife, and a 14-year-old son by one of his wives. M and F lived in Kazakhstan together, where the children were born. There is a dispute between them, which I do not have to resolve, as to precisely how much time they spent living together. What is agreed is that their relationship continued until mid-2018 (approximately 6 years after marriage) when they separated shortly after G’s birth. Thereafter, the children lived with M as their primary carer although E was with F for 2 months until August 2018 in disputed circumstances. The parties disagree as to how much time the children spent with F after separation; he says he saw them 3-4 times per month, whereas M says it was no more than 6 occasions in total between mid-2018 and September 2019 as well as a fleeting meeting on 19 December 2019, the last time F saw the children.

In January 2020, E’s school contacted F to tell him that she was not attending school, and that they had reported the situation to the Kazakhstani authorities. Upon making enquiries, F established that M and the children had left Kazakhstan on 29 December

The children have not seen F in person, not seen him by videocall, nor spoken to him by telephone since December 2019, a period of some 15 months. They have had no interaction with him at all.

On 20 January 2021, F issued proceedings in Kazakhstan seeking contact with the children; a translated copy of the application has been produced. It was suggested to me that there may be a hearing in mid-April, although I have no confirmation of that. I was informed that M had not been served with the application, and had not seen it, but she is now undoubtedly on notice. Notably, F has not sought, nor does he intend to seek, an order transferring care of the children from M to himself. F’s sole purpose in his application is to take up once more the contact which was in place prior to the children’s removal from Kazakhstan.

The expert, Mr Chumakov, provided a report and gave oral evidence. He was clear and helpful. He told me:

F offers conventional undertakings, namely:

The question of whether these undertakings constitute protective measures, given their apparent lack of enforceability, has been an issue before me.

By Article 3 it is a pre-requisite of a wrongful removal that it was _{“in breach of rights of}

The children had always lived in Kazakhstan prior to their removal. They were settled there, E was at school there, the extended families were there, and they are Kazakhstani nationals. They had no links with this jurisdiction. I do not need to embark on an excursive analysis of the jurisprudence on the meaning of habitual residence. It can, for these purposes, be summed up by the comments of Baroness

By Article 5 rights of custody “…shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” As M again properly accepts, the conclusions of the single joint expert make it clear that F had rights of custody under Kazakhstani law and was exercising those rights.

Accordingly, as conceded by M, these two defences as originally pleaded, are no longer sustainable.

The leading authority is Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, per Baroness Hale:

“29.

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. There is an exception for children who have been settled in the requested state for 12 months or more. Article 13 provides three further exceptions. We are concerned with the second:

". . . the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - (a) . . . ; or (b) 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. . . . In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence." (emphasis supplied)

30.

As was pointed out in a unanimous House of Lords decision in Re D, para 51, and quoted by Thorpe LJ in this case:

"It is obvious, as Professor Pérez-Vera points out, that these limitations on the duty to return must be restrictively applied if the object of the Convention is not to be defeated: [Explanatory Report to the Hague Convention] para 34. The authorities of the requested state are not to conduct their own investigation and evaluation of what will be best for the child. There is a particular risk that an expansive application of article 13b, which focuses on the situation of the child, could lead to this result. Nevertheless, there must be circumstances in which a summary return would be so inimical to the interests of the particular child that it would also be contrary to the object of the Convention to require it. A restrictive application of article 13 does not mean that it should never be applied at all."

31.

Both Professor Pérez-Vera and the House of Lords referred to the application, rather than the interpretation, of article 13. We share the view expressed in the High Court of Australia in DP v Commonwealth Central Authority [2001] HCA 39, (2001) 206 CLR 401, paras 9, 44, that there is no need for the article to be "narrowly construed". By its very terms, it is of restricted application. The words of article 13 are quite plain and need no further elaboration or "gloss".

32.

First, it is clear that the burden of proof lies with the "person, institution or other body" which opposes the child's return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13b and so neither those allegations nor their rebuttal are usually tested in cross-examination.

33.

Second, the risk to the child must be "grave". It is not enough, as it is in other contexts such as asylum, that the risk be "real". It must have reached such a level of seriousness as to be characterised as "grave". Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm. 34. Third, the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" (emphasis supplied). As was said in Re D, at para 52, "'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: e.g., where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.

35.

Fourth, article 13b is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home.

36.

There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.”

In Re S (a Child) [2012] UKSC 10 Lord Wilson said at paragraph 34:

“In the light of these passages we must make clear the effect of what this court said in In re E. The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother's anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned.”

In Re D [2007] 1 FLR 961 Baroness Hale said at paragraph 52:

“In this case, it is argued that the delay has been such that the return of this child to Romania would place him in an intolerable situation. "Intolerable" is a strong word, but when applied to a child must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate". It is, as article 13(b) makes clear, the return to the requesting state, rather than the enforced removal from the requested state, which must have this effect. Thus the English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there. In many cases this will be sufficient. But once again, the fact that this will usually be sufficient to avoid the risk does not mean that it will invariably be so. In Hague Convention cases within the European Union, article 11.4 of the Brussels II Revised Regulation (Council Regulation (EC) No 2201/2003) expressly provides that a court cannot refuse to return a child on the basis of Article 13(b) "if it is established that adequate arrangements have been made to secure the protection of the child after his or her return". Thus it has to be shown that those arrangements will be effective to secure the protection of the child. With the best will in the world, this will not always be the case. No one intended that an instrument decided to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm”.

The court should ordinarily assume the risk of harm at its highest and then go on to consider whether protective measures are sufficient to mitigate the identified harm. That said, as Macdonald J pointed out in Uhd v McKay[2019] EWHC 1239, the evidence cannot be viewed entirely in the abstract. The court is entitled to weigh all the evidence and make an assessment about the credibility and substance of the allegations. He cited dicta from Moylan LJ in Re C (Children) (Abduction: Article 13(b) [2018] EWCA Civ 2834, and said this at paragraphs 70-72:

“70.In the circumstances, the methodology articulated in Re E forms part of the court's general process of reasoning in its appraisal of the exception under Art 13(b) (see Re S (A Child)(Abduction: Rights of Custody) [2012] 2 WLR 721), which process will include evaluation of the evidence before the court in a manner commensurate with the summary nature of the proceedings. Within this context, the assumptions made with respect to the maximum level of risk must be reasoned and reasonable assumptions based on an evaluation that includes consideration of the relevant admissible evidence that is before the court, albeit an evaluation that is undertaken in a manner consistent with the summary nature of proceedings under the 1980 Hague Convention.

71.That the analytical process described in Re E includes consideration of any relevant objective evidence with respect to risk is further made clear in the approach articulated by Lord Wilson in Re S to cases in which it is alleged, as it is in this case, that the subjective anxieties of a respondent regarding a return with the child are, whatever the objective level of risk, nevertheless of such intensity as to be likely, in the event of a return, to destabilise the respondent's parenting of the child to a point where the child's situation would become intolerable. As noted above, in Re E the Supreme Court made clear that such subjective anxieties are, in principle, capable of founding the exception under Art 13 (b). However, it is also clear from the decisions of the Supreme Court in Re E and in Re S that there are three important caveats with respect to this principle.

72.

First, the court will look very critically at an assertion of intense anxieties not based upon objective risk (see Re S (A Child) (Abduction: Rights of Custody) at [27]). Second, the court will need to consider any evidence demonstrating the extent to which there will, objectively, be good cause for the respondent to be anxious on return, which evidence will remain relevant to the court's assessment of the respondent's mental state if the child is returned (see Re S (A Child)(Abduction: Rights of Custody) at [34] and see also Re G (Child Abduction: Psychological Harm [1995] 1 FLR 64 and Re F (Abduction: Art 13(b): Psychiatric Assessment) [2014] 2 FLR 1115). Third, where the court considers that the anxieties of a respondent about a return with the child are not based upon objective risk to the respondent but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise the respondent's parenting of the child to a point where the child's situation would become intolerable, the court will still ask if those anxieties can be dispelled, i.e. whether protective measures sufficient to mitigate harm can be identified (see Re E (Children)(Abduction: Custody Appeal at [49]). Within this context, in Re S Lord Wilson observed at [34] as follows:

"The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother's anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the courts mental state if the child is returned".

Should the Article 13(b) exception be established, that is not the end of the matter. The court is required to go on to consider whether, notwithstanding the availability of the defence, the child should nevertheless be returned. This is an exercise of discretion, albeit it is well established (see Re M (Abduction: Zimbabwe [2007] UKHL 55) that in the usual course of events it is unlikely that the court will order a return if to do so would place the returning child in the way of the very harm which has been found to constitute the Article 13(b) defence.

M’s case is summarised thus in her written evidence: “during my relationship with the Applicant I suffered domestic abuse both physically and emotionally”. She makes a number of assertions:

It is right to observe that F adamantly denies the allegations made against him by M. Largely, they are unparticularised and in my judgment the factual allegations put forward by M are to a degree undermined by:

On the other hand, a number of matters persuade me that M, upon whom the burden falls, does not establish the Article 13(b):

I acknowledge that the undertakings offered by F are not directly enforceable in Kazakhstan, although they may be capable of being embodied in an agreement in the existing contact application as the expert indicated. Does this enable M to bring her case within the Article 13(b) exception? In my judgment it does not.

It is important to recognise the nature and scope of so-called “protective measures”.

In Re C (supra) Moylan LJ considered the courts approach in considering Art 13(b) and the issue of protective measures at paragraphs 40 onwards:

Williams J summarised the use of protective measures thus in A (A Child) (Hague Abduction: Art 13(b) Protective Measures [2019] EWHC 649:

“23.

Article 11(4) of BIIA rules out a non-return where it is established that adequate protective measures are available. The Practice Guide makes clear that this is intended to address the situation where authorities have made or are prepared to make such arrangements. The Court of Appeal has recently confirmed that protective measures include all steps that can be taken, including housing, financial support, as well as more traditional measures such as non-molestation injunctions (see Re C [2018] EWCA Civ 2834).

24.

Protective measures may include undertakings, and undertakings accepted by this court or orders made by this court pursuant to Article 11 of the 1996 Hague Child Protection Convention are automatically recognised by operation of Article 23 in another Convention state (see Re Y (A Child) (Abduction: Undertakings Given for Return of Child). To be enforceable they must be declared enforceable pursuant to Article 26. The 1996 Hague Convention Practical Operation handbook provides examples of measures which might be covered by Article 11. European Regulation 606/2013 on the Mutual Recognition of Protection Measures in Civil Matters sets up a mechanism allowing for direct recognition of protection orders issued as a civil law measure between member states, thus a civil law protection order such as a non-molestation order or undertaking issued in one member state, can be invoked directly in another member state without the need for a declaration of enforceability but simply by producing a copy of the protection measure, an Article 5 certificate and where necessary a transliteration or translation.

25.A protection measure within that is defined as any decision, whatever it is called, ordered by an issuing authority of the member state of origin. It includes an obligation imposed to protect another person from physical or psychological harm. Our domestic law provides this court can accept an undertaking where the court has the power to make a non-molestation order. Thus, it seems that a non-molestation undertaking given to this court could qualify as a protection measure within the European Regulation on protection measures. “

Article 11(4) of Council Regulation (EC) No 2202/2003 provides that: “A court cannot

Article 11(4) does not apply to the application before me as Kazakhstan is not a EU Member State. It is nevertheless commonplace in non-EU Member State cases for the term “protective measures” to be used, and for the court to consider the practical arrangements on return as part of its enquiry into the Article 13(b) defence. Ordinarily, such measures are offered by way of undertaking. If the applicant for a return order can put in place such measures as will ensure the protection of a child, the grave risk of harm to a child defence is self-evidently much reduced. But it does not follow that such protective measures are a pre-requisite to the failure of the Article 13(b) defence. Were that the case, no return orders would ever be made to a jurisdiction where undertakings made in the course of Hague Convention proceedings are not enforceable in the state of origin.

It is therefore not the case, as a matter of law, that undertakings given in this jurisdiction must be enforceable in the jurisdiction of the requesting state before a

In this case in my judgment the lack of enforceability of the proposed undertakings in Kazakhstan does not of itself, or in conjunction with the matters raised by M and summarised above, enable M to cross the high threshold of Article 13(b):

M’s written evidence does not state that she will not return to Kazakhstan with the children if a return order is not made, nor does any directions order in these proceedings flag up this matter. Counsel for M asked Ms Demery some questions about the impact on the children if M does not return. At the end of her evidence, I asked counsel what M’s case on this was. He was properly circumspect in his reply. He did not advance a case that M will not return in the event that the children are ordered to be returned. He said that she would “consider her position carefully”. She believes that the children would be removed from her care although this is somewhat circular in that I would expect her, as a devoted mother, to return with the children to ensure that does not take place. Further, I have concluded that there is no real risk, objectively, of the children being removed from her care. I consider it likely that she will in fact return with the children.

Looking at matters in the round, I am satisfied that M does not establish the Article 13(b) defence.

All that said, I am minded to delay implementation of the return order until a written agreement is lodged with the Kazakh court. That can take place when the court “accepts” F’s contact application. It may be that it has already been “accepted” in which case an agreement can be lodged immediately. If not, there may be a delay before the agreement can be lodged. By taking this course I am endorsing a return order but staying implementation for a limited period of time. I consider it appropriate to do so, not because I view it as necessary in Article 13(b) terms that an agreement to be lodged to secure the protection of the children, but because I consider it would be helpful to both parties and to the children going forward. M in particular may benefit from a greater sense of security and her concerns (which in my judgment are largely unfounded) about the children being removed from her care will be alleviated. It would create a better environment for the welfare proceedings in Kazakhstan. This possible approach was explored in submissions and F indicated his agreement to it; he did not press for a forthwith return. I therefore propose that my order shall record:

I turn to the remaining defence, namely the child’s objections (in this case, those of E). The law on the gateway defence and the exercise of discretion is conveniently summarised by Williams J in Re Q and V [2019] EWHC 490 at paragraph 50:

“The law on the 'child's objection' defence under Art 13 of the Convention is comprehensively set out in the judgment of Black LJ in Re M (Republic of Ireland)(Child's Objections)(Joinder of Children as Parties to Appeal) [2015] 2 FLR 1074 (and endorsed by the Court of Appeal in Re F (Child's Objections)[2015] EWCA Civ 1022) and I have regard to the clear guidance given in that case. In summary, the position is as follows:

i)

The gateway stage should be confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.

ii)

Whether a child objects is a question of fact. The child's views have to amount to an objection before Art 13 will be satisfied. An objection in this context is to be contrasted with a preference or wish.

iii)

The objections of the child are not determinative of the outcome but rather give rise to a discretion. Once that discretion arises, the discretion is at large. The child's views are one factor to take into account at the discretion stage.

iv)

There is a relatively low threshold requirement in relation to the objections defence, the obligation on the court is to 'take account' of the child's views, nothing more.

v)

At the discretion stage there is no exhaustive list of factors to be considered. The court should have regard to welfare considerations, in so far as it is possible to take a view about them on the limited evidence available. The court must give weight to Convention considerations and at all times bear in mind that the Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned, and returned promptly.

vi)

Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are authentically the child's own or the product of the influence of the abducting parent, the extent to which they coincide or at odds with other considerations which are relevant to the child's welfare, as well as the general Convention considerations (Re M [2007] 1 AC 619).”

In Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 at p.204, the court indicated the need to consider the strength and validity of the child’s views which will call for an examination of the following matters, among others:

The Family Court Adviser, Ms Demery, has produced a clear and helpful report, which she supplemented with oral evidence:

In my judgment, and applying a fairly robust approach, this defence is not made out:

If I am wrong in this, I would in any event exercise my discretion to order a return for the following reasons:

I conclude that M’s defences are not made out. I will make an order for return until the later of the following:

There shall be liberty to apply as to implementation.