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SUMMARY RETURN ORDERS: Article 13 Alleged Risk of Oppressive Litigation and grave risk of harm

Date posted: 16 May 2019

Amna Khaliq, International Child Abduction and Contact Unit panel member and Partner in the Family department, was instructed by the International Child Abduction and Contact unit to represent the father in an application for summary return of his daughter to Israel.

 

The case concerned a girl aged 11 who was habitually resident in Israel at the time of the unlawful removal to England and Wales.  Following on from this unlawful removal, the father sought an Order for the summary return of his daughter to Israel which was opposed by the mother.

 

The mother relied on the exception provided by Article 13 (b) of the 1980 Hague Convention namely that to Order the summary return of the child to Israel would result in grave risk of exposure to physical or psychological harm or otherwise placing the child in an intolerable situation.  When raising this defence the mother sought to rely upon the father’s alleged risk of oppressive litigation whilst they were residing in Israel.

 

Mr Justice MacDonald addressing mother’s assertion that she was at risk of oppressive litigation and found that whilst the mother complained about the father highly litigious character, in circumstances where the parties had reached an agreement in the State of Israel in November 2017 to end the extensive litigation between them in Israel, it is ironic that it was the actions of the mother that has instigated a further round of litigation in respect of the child after a year of relative calm in this jurisdiction.  Whilst giving Judgment Mr Justice MacDonald helpfully revisited the law pertaining to Article 13 defence of the 1980 Hague Convention summarising that it is for the Respondent with whom the burden lies to show that the exception under Article 13 (b) is made out, the essential question for the court is whether the child returning to the jurisdiction they have been unlawfully removed from would lead to a grave risk of exposure to physical or psychological harm or place that child in an intolerable situation by reason of:

 

  1. A resumption in what mother’s contends is, within the context of the substantial respective financial positions, the father’s relentless and oppressive use of the legal system in that country to obstruct her from being able to care for that child in that jurisdiction and/or;
  2. A continuation of what the mother alleges are actions taken by the father that are alienating the child from the mother and what ultimately lead to a risk that the child will no longer wish to live in her care.

 

Mr Justice MacDonald found that beyond mother’s bold assertion there is no evidence before the court on which they can properly assume a risk in this case the father will alienate the child against the mother.  Indeed the evidence pointed otherwise.  Mr Justice MacDonald endorsed the methodology by the Supreme Court in re E by which the court assumes the risk relied upon at its highest is not an exercise that is undertaken in the abstract.  It must be based on admissible evidence that is before the court, albeit an evaluation that is undertaken in a manner consistent with the summary nature of proceedings under the 1980 Hague Convention.  Further, the court does not assume that maximum level of risk but must examine this information available to it and having considered the information then arriving at a reasonable assumption as to the maximum level of risk regarding the available evidence.  Within the context of this case Mr Justice MacDonald was satisfied that there was not a situation of this nature that would result in grave risk of harm of the child being exposed to psychological harm or otherwise place her in an intolerable situation.

 

The judgement of this reported case can be found at MB v TB (Art 13 Alleged Risk of Oppressive Litigation) [2019] EWHC 1019 (Fam)

 

If you require assistance with a family case like this, contact Amna on 020 8885 7971 or a.khaliq@wilsonllp.co.uk, or for an appointment contact Mavis on 020 8885 7986