The UK Supreme Court has granted permission to appeal in a case involving the grave risk of harm defence under Article 13b of the 1980 Hague Convention. The main point in the appeal involves a challenge to the way the Court of Appeal approached the question of harm to a child arising out of the likely impact on a mother's mental health where the impact would be caused not by an objective risk to the mother and child but because of her subjective fear of risk. In Re E (UKSC May 2011) the court appeared to approve of the proposition that the source of the harm was irrelevant if in fact it was likely to cause harm to the child but the Court of Appeal judgment suggests that the risk of harm must be objectively a real one. James Turner QC and Geraldine More O'Farrell instructed by Rosleys are for the Appellant and Nic Anderson instructed by Philippa Morgan at Lyons Davidson for the Respondent.
The hearing is listed for 20th February 2012.
Tuesday 31 January 2012
1996 Hague Convention Update
The latest news on the implementation on the Convention is May or June 2012. 4 Paper Buildings will be running a 1/2 day seminar on the Convention in April or May.
Wednesday 25 January 2012
Hague Conference 6th Special Commission
The Sixth Special Commission meeting to review the practical operation of the 1980 Hague Child Abduction Convention and the 1996 Protection of Children Convention, opened today in the Hague and will continue until 31st January 2012. The programme which follows up Part I which took place in June 2011 includes presentations and discussions on:
The Conclusions of Part I can be found at: http://www.hcch.net/index_en.php?act=publications.details&pid=5378&dtid=2
- the enforcement of mediated agreements;
- grave risk of harm defence in return proceedings;
- international family relocation; and
- the future of the Malta Process, a dialogue between senior judges and high ranking government officials from Contracting States to the 1980 and 1996 Conventions and non-Contracting States with Sharia based law. The Process is aimed at improving State co-operation in order to assist with resolving difficult cross-border family law disputes in situations where the relevant international legal framework is not applicable.
The Conclusions of Part I can be found at: http://www.hcch.net/index_en.php?act=publications.details&pid=5378&dtid=2
Tuesday 24 January 2012
ECHR decisions on Article 13b Hague Convention
Two recent decisions of the ECHR seem to show somewhat different approaches in the aftermath of the storm that followed their decision in Neulinger and Shuruk-v-Switzerland (June 2010). Following the concerns expressed by the international legal community the President of the ECtHR made clear in observations to the France - British -Irish Judges Conference in May 2011 that the Court had not intended the decision to be read in the way it had been. These observations were referred to by the UK Supreme Court in the decision of Re E [2011] UKSC 27 [2011] FLR 758 when that court rejected the contention that the effect of Neulinger was to require a full welfare investigation within Hague Convention proceedings.
In Sneersome and Kampanella -v-Italy (App 14737/09) [2011] 2 FLR 1322 the Court considered whether the Italian Courts had acted in breach of the Article 8 rights of the mother and child when using the 'second bite of the cherry' provisions of Art 11 (7) &(8) of BIIIR to over-ride a non-return order made by the Latvian courts in Hague Convention proceedings. The ECtHR concluded that the Italian courts had breached those rights, primarily because they did not deal with the risks identified by the Latvian courts but also because they did not consider the Italian courts had taken sufficient steps to satisfy themselves that the protective measures proposed were adequate to safeguard the child's welfare on a return. The court DID NOT say that a full welfare investigation had to be undertaken.
This case is interesting for the emphasis laid on the need to consider the reasons for refusal of the Hague court to return as required in order to issue the necessary certificate but also for the emphasis on consideration of protective measures under Art 11(4) to reduce or ameliorate a risk. In this respect the approach of the Court mirrors that of the UK Supreme Court in Re E.
In X v. Latvia (ECHR Application 27853/09) decided on December 13, 2011 the ECtHR (Third Section) seemed to go further in finding that the decision of the Latvian courts in making a return order was a breach of Article 8. The majority (6) criticised their failure to give weight to a psychological report on the child and other matters and concluded that as a result of a failure to conduct an in-depth examination of the family situation the making of the return order was a disproportionate interference. Interestingly 2 members of the Section gave dissenting judgments in which they stated that they considered the majority decision was to substitute their own assessment of the best interests of the child with that of the domestic courts. Although the language used by the majority is less emphatic than in the Neulinger stream of cases the decision itself is most unusual for the 'hands on' approach adopted and the way they seem to have acted as a superior appellate court of the sort they are not supposed to be.
Overall the two cases do not add any further fuel to the Neulinger flames - if anything they are evidence of a retreat by the ECtHR from that stream of decisions. They do not seem to me to be as radical as Jeremy Morley sees them: http://www.internationalfamilylawfirm.com/2012/01/hague-abduction-convention-under-threat.html?m=
Of interest to European abduction lawyers in particular is the opening of a route to challenge certificates issued under BIIR Art (7) & (8).
In Sneersome and Kampanella -v-Italy (App 14737/09) [2011] 2 FLR 1322 the Court considered whether the Italian Courts had acted in breach of the Article 8 rights of the mother and child when using the 'second bite of the cherry' provisions of Art 11 (7) &(8) of BIIIR to over-ride a non-return order made by the Latvian courts in Hague Convention proceedings. The ECtHR concluded that the Italian courts had breached those rights, primarily because they did not deal with the risks identified by the Latvian courts but also because they did not consider the Italian courts had taken sufficient steps to satisfy themselves that the protective measures proposed were adequate to safeguard the child's welfare on a return. The court DID NOT say that a full welfare investigation had to be undertaken.
This case is interesting for the emphasis laid on the need to consider the reasons for refusal of the Hague court to return as required in order to issue the necessary certificate but also for the emphasis on consideration of protective measures under Art 11(4) to reduce or ameliorate a risk. In this respect the approach of the Court mirrors that of the UK Supreme Court in Re E.
In X v. Latvia (ECHR Application 27853/09) decided on December 13, 2011 the ECtHR (Third Section) seemed to go further in finding that the decision of the Latvian courts in making a return order was a breach of Article 8. The majority (6) criticised their failure to give weight to a psychological report on the child and other matters and concluded that as a result of a failure to conduct an in-depth examination of the family situation the making of the return order was a disproportionate interference. Interestingly 2 members of the Section gave dissenting judgments in which they stated that they considered the majority decision was to substitute their own assessment of the best interests of the child with that of the domestic courts. Although the language used by the majority is less emphatic than in the Neulinger stream of cases the decision itself is most unusual for the 'hands on' approach adopted and the way they seem to have acted as a superior appellate court of the sort they are not supposed to be.
Overall the two cases do not add any further fuel to the Neulinger flames - if anything they are evidence of a retreat by the ECtHR from that stream of decisions. They do not seem to me to be as radical as Jeremy Morley sees them: http://www.internationalfamilylawfirm.com/2012/01/hague-abduction-convention-under-threat.html?m=
Of interest to European abduction lawyers in particular is the opening of a route to challenge certificates issued under BIIR Art (7) & (8).
Monday 9 January 2012
Criminal and Civil Penalties for Child Abduction
The Court of Appeal has considered the role of penal sanctions in child abduction situations in 2 recent cases. Interestingly Lord Justice McFarlane is the link between the two.
In Re W [2011] EWCA Civ 1196 the court confirmed that an abductor could face repeated committals for on-going failures to either return the child or to provide information as to whereabouts. The necessary pre-condition was that each committal would have to be founded on the breach of a new order rather than an on-going breach of one single order. At each committal the court would consider the proportionality of the use of committal.
In R-v-Kayani and Solliman [2011] EWCA Crim 2871 the Court confirmed that the common law offence of kidnapping could be used in parental child abduction situations but recognised that proof of the 4 ingredients would make its use problematic. The offence under the Child Abduction Act 1984 was much more straightforward to prove BUT the Court expressed the view that the 7 year maximum sentence was too low and should be increased.
In neither case did the Court deprecate the use of penal sanctions in parental child abduction situations but rather confirmed that they were appropriate. It may be that one could argue the Court was dealing with abductions at the extreme end of the spectrum where the child had been hidden away for years and the relationship with the left behind parent irreparably damaged but to interpret them so narrowly would suggest that the lower end of the range of criminal penalties for parental child abduction would or should never be used because offences of less seriousness should not be prosecuted. The accepted wisdom of the last 20 odd years has been that abducting parents should not be prosecuted and non-prosecution undertakings are commonly sought. It may be that in 'straightforward' primary carer removals or holiday retentions where the child/parent relationship has sustained little damage as a result of the abduction that this pragmatic approach will and should continue however the more one moves away from this situation and where the emotional harm to the left behind parent and child becomes greater there will presumably come a 'threshold' when the harm created by a prosecution of a primary carer will be outweighed by the emotional harm caused by the abduction and the public interest in prosecution. It will be interesting to see whether there is any shift in emphasis in this regard following these robust condemnations in the Court of Appeal. The language used in both is stark in describing the impact of abduction and would suggest that the Court of Appeal does not have the same distaste for the use of criminal penalties that family practitioners in the field have accepted as the natural order of things for so long.
In Re W [2011] EWCA Civ 1196 the court confirmed that an abductor could face repeated committals for on-going failures to either return the child or to provide information as to whereabouts. The necessary pre-condition was that each committal would have to be founded on the breach of a new order rather than an on-going breach of one single order. At each committal the court would consider the proportionality of the use of committal.
In R-v-Kayani and Solliman [2011] EWCA Crim 2871 the Court confirmed that the common law offence of kidnapping could be used in parental child abduction situations but recognised that proof of the 4 ingredients would make its use problematic. The offence under the Child Abduction Act 1984 was much more straightforward to prove BUT the Court expressed the view that the 7 year maximum sentence was too low and should be increased.
In neither case did the Court deprecate the use of penal sanctions in parental child abduction situations but rather confirmed that they were appropriate. It may be that one could argue the Court was dealing with abductions at the extreme end of the spectrum where the child had been hidden away for years and the relationship with the left behind parent irreparably damaged but to interpret them so narrowly would suggest that the lower end of the range of criminal penalties for parental child abduction would or should never be used because offences of less seriousness should not be prosecuted. The accepted wisdom of the last 20 odd years has been that abducting parents should not be prosecuted and non-prosecution undertakings are commonly sought. It may be that in 'straightforward' primary carer removals or holiday retentions where the child/parent relationship has sustained little damage as a result of the abduction that this pragmatic approach will and should continue however the more one moves away from this situation and where the emotional harm to the left behind parent and child becomes greater there will presumably come a 'threshold' when the harm created by a prosecution of a primary carer will be outweighed by the emotional harm caused by the abduction and the public interest in prosecution. It will be interesting to see whether there is any shift in emphasis in this regard following these robust condemnations in the Court of Appeal. The language used in both is stark in describing the impact of abduction and would suggest that the Court of Appeal does not have the same distaste for the use of criminal penalties that family practitioners in the field have accepted as the natural order of things for so long.
Subscribe to:
Posts (Atom)