Abduction and the child’s “best interests” – analysis

14 June 2011 by Rosalind English

E (Children) FC [2011] UKSC 27 – read judgment ; see previous post for summary

This case shows some of the difficulties thrown up by the interesting tension between the primacy of children’s interests implied by Article 8 of the European Convention on Human Rights and the controls on child abduction exerted by the 1980 Hague Convention.

The Human Rights Convention, in requiring that states ensure respect for family life,  protects first and foremost the rights of the child. But of course the Hague Convention has different priorities. The first aim of that instrument is to deter either parent from taking the law into their own hands and removing themselves and their children to another jurisdiction. If abduction does take place, the next object of the Convention is to restore the children as soon as possible to their home country, so that any dispute can be determined there, since the parent left behind is the wronged party, and should not be put to the trouble and expense of coming to the requested state in order to participate in the resolution of factual issues here. Article 12 therefore requires a requested state to return a child forthwith to its country of habitual residence if it has been wrongfully removed in breach of rights of custody. Article 13(b) mitigates that obligation if there is a “grave risk” of “physical or psychological harm.”

So far, so good. But this limitation on the duty to return has to be restrictively applied if the object of the Hague Convention is not to be defeated. In any event, it is rarely appropriate for a court to hear oral evidence  of the allegations made under article 13b and so neither those allegations nor their rebuttal are usually tested in cross-examination.

Children’s interests: where are they on a scale of importance?

To complicate matters further, Article 3(1) of United Nations Convention on the Rights of the Child also plays a role. This provision also ensures the primacy of the child’s interests:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

As Jacqueline Renton points out in her excellent analysis of this case,’ “a” primary consideration’ is not the same thing as ‘“the” primary consideration’ or “the paramount consideration”. Nor does the Children Act 1989 apply to apply in Hague cases so as to make the child’s best interests “the paramount consideration.” But this somewhat begs the question of what all these adjectives mean. If there is a sliding scale of importance involved, then each of these words “paramount”, “the/a primary” etc should be clearly allotted their appropriate level so that practitioners and parties understand their chances in court.However, when the Grand Chamber of the Strasbourg Court attempted to do something like this  in  Neulinger and Shuruk v Switzerland [2011] 1 FLR 122,  it seems to have caused great consternation by concluding that the primacy of the best interests of the child should determine the outcome, even if it went against the aims of Article 13(b) of the Hague Convention.

This consternation is expressed in the first paragraph of the Supreme Court’s judgment in this case, given by Lady Hale and Lord Wilson, and most of the following paragraphs are given over  to diluting the effect of the Grand Chamber’s decision.

Objectives of the Hague Abduction Convention

In considering the primary aims of the Hague Convention, the Supreme Court acknowledges that there was “no doubt” that the paradigm case which the Convention draftsmen had in mind was a dissatisfied parent who did not have the primary care of the child snatching the child away from her primary carer. Nowadays, the Court accepted, things have changed.

 the most common case is a primary carer whose relationship with the other parent has broken down and who leaves with the children, usually to go back to her own family. There are many more international relationships these days than there were even in the 1970s when the Convention was negotiated, so increasingly returning to her own family means crossing an international boundary.

There are other problems with the implementation of the Hague Convention. It is not only “all too common” for courts to recognise that there may be some truth in the claims of domestic abuse and ill-treatment – even violence – by the abducting parent,  but even if they do suspect there are some grounds to these allegations, they grant the return order sought under the Convention without any assurance that undertakings for the safety of the parties returned will be observed. Indeed, as this judgment observes, “the whole concept of undertakings is not generally understood outside the common law world.”

We have posted before on the primacy of children’s interests under other legislation involving cross-border matters (such as section 55 of the Borders, Citizenship and Immigration Act 2009).  The Hague Convention contains no express requirement for  the court hearing a case under its provisions to make the best interests of the child its primary consideration. Given that the objective of the Hague Convention is that the child should be present in the jurisdiction where the factual issues as to its upbringing are decided, the dominant theme of the instrument is that the best interests of the child will be served by a prompt return to the country where it is habitually resident.

An anachronism in a changing world?

This flies in the face of all the other areas of judicial endeavour where children are involved; there is nothing in modern life, where mass movements of people, be they refugees, economic migrants, or simply warring families, that dictates that the restoration of a child to “familiar” surroundings is a good thing in its own right. Those familiar surroundings may have involved violence, war, poverty, disease, a whole range of pestilences that drove the child away in the first place; this is why appeals to family rights carry weight in asylum cases. This was the thrust of the AIRE centre’s intervention.  It cannot be logical for one Convention to restrain the government from returning refugees to countries where they face torture or inhuman or degrading treatment or the risk of an unfair trial, when another Convention requires that an abducting parent should be returned to face such a risk.

Yes, the Hague Convention may be primarily concerned with routing the factual assessment of the family situation back to the jurisdiction where the deserted parent abides, but in any cases where Article 8 of the Human Rights Convention predominates, a full factual analysis is (or should be) undertaken of the emotional, psychological, material and medical nature of the interests at stake; how then is this analysis to be barged aside when the case also involves an abduction? This is precisely why the Strasbourg Court said, in Neulinger , that Article 8 should be applied to any case being decided under the Hague Convention; it follows that

 a child’s return cannot be ordered automatically or mechanically when the Hague Convention is applicable. The child’s best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences. . .. For that reason, those best interests must be assessed in each individual case.

In doing so, the Supreme Court complains, the Strasbourg Court

 gives the appearance of turning the swift, summary decisionmaking which is envisaged by the Hague Convention into the full-blown examination of the child’s future in the requested state which it was the very object of the Hague Convention to avoid.

Although it sticks in this blogger’s craw to defend the Strasbourg Court, for once, I think, that Court got it right. It is not, indeed, for the Strasbourg court to decide what the Hague Convention requires. Its role is to decide what the ECHR requires. But where another Convention appears to be undermining the very interests that are so vigilantly protected by the Human Rights Convention, then what is this judicial body to do? It is simply wishful thinking to suggest that Article 8 can never “trump” the Hague Convention; that in some inchoate way “they march hand in hand” (sic). How can they possibly be so compatible when, on the one hand, Article 8 prevents the return of families to destinations where they may not be entitled to  a certain level of healthcare, while, on the other,  the Hague Convention return obligation is only lifted if there is a “grave” risk of  harm? In the Supreme Court’s own words –

“grave” characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as “grave” while a higher level of risk might be required for other less serious forms of harm. [italics mine]

Hmm. Put in context, the children in this case face being returned to a father who, allegedly, laid about them and tormented and killed family pets as a form of intimidation.  Are we seriously being asked to believe, as this judgment suggests we should believe, that this is the sort of “rough and tumble” that every child has to put up with (“it is part of growing up” (para 34)? There were all sorts of undertakings made by the father, to be sure, which led the original trial judge to make the order, but these were undertakings given to the English High Court which cannot be enforced in Norway. Even at the time of this appeal there were no orders yet made in the Norwegian courts. The fact that the Supreme Court had real concerns about the children and mother in this case is betrayed by their request to the Hague Conference to consider putting in place some sort of mechanism to ensure that protective orders and undertakings are enforced in the requesting state.

Let’s have some clarity on where the weight to be given to the child’s best interests in all the areas of legislative endeavour where this is relevant – terrorism, asylum, immigration, family and social welfare law. Without such clarity, it is hard to believe that Article 8 considerations are really being taken into account within the Hague Convention, rather than being paid mere judicial lip service.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

• Analysis: Children’s “best interests” and the problem of balance
• The adoption dilemma: the rights of parents v children’s interests
• Supreme Court bolsters the rights of children in deportation cases