Case Update: Y (A Child) (Abduction: Romania: Art. 13(b))

The case of Y (A Child) (Abduction: Romania: Art. 13(b)) [2023] EWHC 1676 (Fam) (14 February 2023) was recently published. This is a decision in respect of a contested 1980 Hague Application.

In short, as paragraph six of the judgment outlines, “the mother defends the application on the basis of Article 13(b) of the Convention, that is to say that she argues that a return to Romania would subject Y to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation”. As such, the issue in this case was whether the Article 13b defence was met or not and as a consequence, whether the court had to make an order for summary return and if so on what basis.

The facts are set out in the judgment and the competing legal submissions were set out by both counsel involved in the case at paragraphs 20, 24, and 25 respectively. The focus of the judge’s assessment on Article 13b was in respect of domestic abuse. His lordship in his judgment considered the competing arguments and evidence from paragraph 26 onwards.

His lordship made the point that in respect of domestic abuse allegations in the context of summary proceedings within 1980 Hague Convention cases:

“I note that I have not heard oral evidence from either party and I am dealing with this case (as is usual when the Article 13(b) exception arises) solely on the basis of written evidence.”

His lordship did make helpful comments in respect of domestic abuse generally in the context of family proceedings. At paragraph 40, he stated:

“However, the family courts are well aware that it is a sad feature of domestic abuse cases that there may be a lack of contemporaneous or corroborative evidence because the victim is trapped in a cycle of abuse and does not have the wherewithal to escape or to make complaint.”

At paragraphs 45 and 46, the approach adopted by the Court in relation to the case facts and Article 13b was set out:

“Nonetheless, given the view I am taking regarding the mother’s allegations against the father in relation to her, I must consider whether, if those allegations are true, there would, nonetheless, be a grave risk that Y would be exposed to physical or psychological harm or otherwise face an intolerable situation.

Given the seriousness of the allegations that have been made, including serious physical violence, threats, the breaking objects, outbreaks of considerable anger and suicide attempts, I am wholly satisfied that if those allegations are true – a point which I emphasise I am not determining today – there would, indeed, be a grave risk that absent any protective measures, Y, if living with the mother in Romania, would be exposed to physical and psychological harm or otherwise placed in an intolerable situation.”

For the remainder of the judgment, the went on to consider the issue of protective measures, quoting MacDonald J G v D:

“As MacDonald J set out in G v D, it is well-established the court should accept, unless the contrary is proved, that the administrative, judicial, and social service authorities of the requesting State are equally as adept in protecting children as they are in the requested State. I am not satisfied that it has been proved by the mother that the Romanian order which she asks that the father to submit to is available in this case, or indeed, that it would provide a substantially greater level of protection to Y than the undertakings that have been offered by the father. Taking these matters into account, I am satisfied that the undertakings that have been proposed by the father provides proper protection, both to the mother and for Y.”

In conclusion:

“In the circumstances, I am satisfied that the protective measures that have been outlined above are sufficient to address or ameliorate the risks that I have identified, such that Y will not be exposed, if these measures are put in place, to a grave risk of physical or psychological harms on a return to Romania. I therefore consider that the mother’s Article 13(b) objection has not been made out and I am therefore required by the Convention to order the return of Y, forthwith.”

It is also noting with the judgment the judge added a postscript in the bottom outlining that “an application by the mother to the High Court for a stay of my order pending an appeal of the Romanian decision was refused by Mr Nicholas Cusworth KC sitting as a deputy judge of the High Court on 9th March 2023 see Re Y (A Child) [2023] EWHC 583 (Fam)”.

By Mani Singh Basi, barrister at 4PB

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