Summary
The proceedings were in respect of the parties’ two children who were born in 2004 and 2007.
The father was Norwegian, and the mother was English. The children had a half-sister from a mother’s previous relationship.
In 2010, the children’s half-sister came to England in order to live with her grandmother. Subsequently, the mother came over with her two other daughters, intending to stay permanently in England.
The father sought a summary return of his two children to Norway.
The mother objected, invoking defence of Art. 13(b) and submitting that the father subjected her to psychological abuse. The children’s half-sister joined the proceedings as a party in support of the mother’s case.
Mrs Justice Pauffley dismissed the mother’s defence and granted the father’s application, ordering the children’s return to Norway.
On 6th December 2010, an appeal notice was put forward by the mother.
The decision of the High Court was upheld by the English Court of Appeal.
On 6th April 2011, the mother appealed against the decision of the Court of Appeal.
The UK Supreme Court dismissed the appeal. In this context, Baroness Hale held:
“17 This view, that the Hague Convention is designed with the best interests, not only of children generally, but also of the individual child concerned as a primary consideration, is borne out rather than undermined by the provisions of article 11 of Council Regulation (EC) No 2201/2003 (“Brussels II revised”), which strengthens and (under article 60) takes precedence over the Hague Convention in cases between member states of the European Union (apart from Denmark). Recital (12) to the Regulation points out that “the grounds of jurisdiction in matters of parental responsibility . . . are shaped in the light of the best interests of the child, in particular on the criterion of proximity”. Article 11.2 requires that the child be given an opportunity to be heard, unless this appears inappropriate having regard to his or her age or maturity; and this is now routinely done in this country, not only in EU cases, but in all Hague Convention cases, following the decision of the House of Lords in In re D [2007] 1 AC 619. Further, article 11.4 provides that a court cannot refuse to return a child on the basis of article 13(b) of the Hague Convention “if it is established that adequate arrangements have been made to secure the protection of the child after his or her return”. As was said in In re D, para 52, this means that it has to be shown that such arrangements will be effective to protect the child. And it emphasises that the purpose of article 13(b) is to ensure that a child is not returned to face a grave risk of harm. But where a child is not returned because any of the exceptions contained in article 13 is established, article 11.6 to 11.8 contains a procedure whereby the courts of the requesting state may nevertheless make a decision about the custody of the child, which decision will be enforceable in the requested state.” [17]