1996 Hague Convention: Protective Measures

The decision of the Court of Appeal on the use of protective measures in Art 13b cases and the facility to register them using the 1996 Hague Convention is reported on bailii: Y (A Child) [2013] EWCA Civ 129 (22 January 2013)

The case was referred back to the Court of Appeal in February when the court was asked to replace the undertakings with orders which would plainly have been capable of registration and enforcement in Cyprus; the position on undertakings had become clearer with the Cypriot lawyers advising that undertakings were not likely to be capable of enforcement. The Court of Appeal declined to replace the undertakings with orders and re-iterated that undertakings are measures.

The difficulty remains that 1996 HC Art 28 which provides that enforcement takes place in accordance with the law of the requested state. If there is no domestic equivalent in the requested state a question mark exists over whether the undertaking can be enforced and thus whether it can be considered an 'adequate' or 'effective' protective measure.

Of interest was the approach of the Court of Appeal to another commonly encountered undertaking - the non-prosecution undertaking. In this case a European Arrest Warrant had been issued after the date of the undertaking. The CA initiated a liaison with the Cypriot Hague liaison judge to seek to ensure the warrant was withdrawn. That liaison resulted in the A-G confirming the warrant would be withdrawn. Arguments about public policy (i.e. not interfering with the criminal process in another state) should not arise where the left-behind parent is prepared to offer non-prosecution. Furthermore if prosecution would lead to intolerability for the child that would be capable of giving rise to an Art 13b defence. The UKSC has made clear in Re E and Re S that the source of the harm is irrevant if in fact it arises. That would apply to abductors who refuse to return, to prosecutions and to situations where medical evidence shows the abductor's mental health is likely to deteriorate even though objectively protection can be achieved.