There is an in-built tension between the speedy justice of child abduction proceedings and the detailed investigation allegations of domestic abuse. It is little surprise, then, that the court has shied away from taking over the role of the foreign court by cramming a full-blown fact-finding into summary Hague proceedings. But is the court’s position changing, and how far it should it go?
Domestic Abuse in Hague proceedings
Allegations of domestic abuse usually arise in proceedings under article 13b, Hague Convention 1980 where the abducting parent alleges that a return order would place the child at grave risk of harm or in an intolerable situation due to domestic abuse perpetrated by the other parent. But – whilst these allegations are central to the court’s decision – the lengthy process of determining them is inimical to the idea of a prompt return and would usurp the role of the court in the child’s home country, which should be resolving any disputes.
The court’s approach
In Re E in 2011, the Supreme Court set out a two-stage test: (i) if the allegations are true, would there be a grave risk and, if so, (ii) how can the child be protected against that risk? Stage one might be paraphrased as taking the allegations ‘at their highest’. However, the Court of Appeal in Re K in 2015, Black LJ said the court did not need to take this approach if the evidence allowed the judge “confidently to discount” the risk. At first glance, this appears to require the kind of evidential assessment that Re E aimed to avoid.
In Re A in 2021, Moylan LJ attempted to clarify the position citing the Good Practice guidance that allegations must be of “sufficient detail and substance” to constitute a grave risk and endorsing the view that any assumptions must be “reasoned and reasonable”. But does this process involve so much evaluation of the evidence that it is effectively a fact-finding?
What are the options?
Mr Justice Williams recently shared his thoughts at a CALA seminar on the 4 categories of cases: (a) the evidence establishes a grave risk on the balance of probabilities, (b) the evidence establishes there is no grave risk on the balance of probabilities, (c) the judge can “confidently discount” the allegation of a grave risk, or (d) the court cannot confidently discount it. The first two categories are opposite ends of the spectrum, the third category is the Re K example, and the last category is where most cases will probably fall. It is only in (b) and (c)-type cases that the court need not move on to look at protective measures on the assumption the allegations are true.
This approach is consistent with Moylan LJ’s comments that the Re K example is referring to (almost) the end of the spectrum, and the court should avoid a “middle course” which might result in treating the allegations as less serious than they deserve.
A useful guide?
Whilst we cannot import tests from other jurisdictions, the court’s approach in asylum proceedings may be informative. The courts used to assessing whether an asylum claim is “clearly unfounded” and so bound to fail if the claim was heard in full by a tribunal. Credibility is rarely a factor and should only result in such an assessment if no one could believe it against the background evidence available. It is often said that the allegations must be taken “at their highest” but this does not mean that no evaluative assessment can be carried out at all, and it seems a similar approach is needed in a child abduction context as well.
Mark Smith is a barrister specialising in extradition, international family and immigration matters. He has particular expertise in cases involving cross-border issues and parallel proceedings across multiple jurisdictions.
He is recognised within the Legal 500 for his work in international crime & extradition, immigration and family: Children. Mark is recognised in Chambers & Partners for extradition and immigration. Mark has appeared in the Supreme Court and the Court of Appeal, as well as the High Court Family Division in relation to international family matters and the Administrative Court in extradition proceedings.
