C (Children) (Abduction: Article 13 (B))

C (Children) (Abduction: Article 13 (B))

The Court of Appeal held that the judge failed to sufficiently analyse the nature and degree of future risk to the children if returned to South Africa and did not adequately consider whether the protective measures proposed by the father would ameliorate any such risk. The evidence did not support the conclusion that the mother’s psychological state would be disabling or that the children would be exposed to a grave risk within the meaning of Article 13(b). Therefore, the judge’s determination could not be maintained and the matter must be reheard.

Parties
Appellant: Father; Respondent: Mother
Jurisdiction
England and Wales
Judgment Date
20 December 2018
Procedural Posture
Appeal / Appeal From High Court (family Division) to Court of Appeal
Outcome
Appeal allowed; order set aside; application remitted for urgent rehearing.
Legal Topics
Child Abduction, Hague Convention 1980, Article 13(b) Defence, Protective Measures, Summary Return of Children
Family Law International Law Child Abduction Hague Convention 1980 Article 13(b) Defence Protective Measures Summary Return of Children

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Parties

Father

Appellant

Mother

Respondent

Procedural Posture

Appeal / Appeal From High Court (family Division) to Court of Appeal

Legal Issues

  1. 1 Whether the mother's Article 13(b) defence under the Hague Convention 1980 was established to prevent the summary return of the children to South Africa
  2. 2 Whether the judge adequately analysed the risk to the children and the efficacy of protective measures proposed by the father

Ratio Decidendi

The Court of Appeal held that the judge failed to sufficiently analyse the nature and degree of future risk to the children if returned to South Africa and did not adequately consider whether the protective measures proposed by the father would ameliorate any such risk. The evidence did not support the conclusion that the mother’s psychological state would be disabling or that the children would be exposed to a grave risk within the meaning of Article 13(b). Therefore, the judge’s determination could not be maintained and the matter must be reheard.

Court Disposition

Appeal allowed; order set aside; application remitted for urgent rehearing.

Orders

  • The appeal is allowed.
  • The order dismissing the father's application is set aside.