Parent’s Refusal to Accompany: The Court of Appeal’s Guidance in R (Child Abduction: Parent’s Refusal to Accompany) [2024] EWCA Civ 1296
The Court of Appeal’s decision in R (Child Abduction: Parent’s Refusal to Accompany) [2024] EWCA Civ 1296 handed down on 30 October 2024, provides crucial clarification on how Courts approach an abducting parent’s assertion that they will not return with the child if a return order is made under the 1980 Hague Convention.
The Court of Appeal has made clear that, in such cases, the correct approach is to undertake a reasoned assessment of the likelihood that the parent will follow through on their assertion. The Court clarified that these assertions should not be treated ‘at their highest’ as with allegations of domestic abuse under Re E (Children) [2011] UKSC 27.
Reunite intervened on matter of principle and practice suggesting that in cases where the court detects that a taking parent may refuse to return with the child(ren), it should act early to ensure that the position is addressed in statements including the issue of protective measures so that oral evidence is less likely to be needed in these summary proceedings.
The facts of the case
This case concerned three young children aged seven, four and two, all of whom had lived their entire lives in France until October 2023. Their parents’ relationship had begun in France, where the mother and father married in 2015. The mother was British and the father of Algerian-origin living and working in France.
The children were born in France and were attending school and nursery locally. Although they had visited the mother’s family in England on holidays, their home and habitual residence was in France.
By 2023, the parents’ relationship had broken down irretrievably. The judge found that the parents were engaged in frequent extended arguments, that the mother was deeply unhappy and that by the time she left France she has resolved to end the marriage and relocate permanently to England with the children.
On 23 October 2023, during the autumn half-term holiday, the father drove the mother and the children to the airport for a visit to the maternal grandparents in England. The mother’s account was that the father knew she intended not to return, while the father’s account was that this was another short stay like previous visits, and that the family were expected back in two weeks.
The judge found that the father was aware of the mother’s desire to end the marriage and move to England but had ‘closed his eyes’ and not engaged with that reality.
On 1 November 2023, shortly after coming to England, the mother sent the father a text confirming that she had decided to remain here with the children. In a message on 5 November 2023, the father said he would respect her decision and wanted to maintain contact. In later messages, he indicated that he would not ask her to return and suggested he could travel back and forth between France and England to see the children.
Father’s position shifted in early 2024. Having realised that reconciliation was unlikely, the father sought the children’s return. On 17 January 2024, he messaged the mother saying he wanted his family back and on 20 February he issued an application under the 1980 Hague convention for the children’s summary return to France.
The judge’s decision
The final hearing took place on 17-18 June 2024 before Mr David Lock KC sitting as a deputy High Court judge. The mother accepted that the children had been habitually resident in France until October 2023 and that their removal had been wrongful. She advanced 3 ‘defences’: consent, acquiescence and Article 13(b).
- Consent: the mother argued that the father had consented to her remaining in England with the children. The judge found that the father had only agreed to a short trip for the half-term holiday.
- Acquiescence: The father’s text messages in November 2023 in response to the mother telling him she will not return included statements that he respected her decision, and he would not ask her to return. He further suggested that he could visit the children in England. The judge held that these communications amounted to acquiescence, at least between November 2023 and January 2024 before the father changed his position. That left the judge with a discretion whether to order a return.
- Article 13(b): Grave risk of harm/ intolerability:
The mother put forward two bases for her Article 13(b) defence –
- Non-return – she stated that she would not return to France under any circumstances. As the children’s main carer, her refusal meant that the children may face a prolonged separation from her if a return order was made. She argued that this would be intolerable for the children.
- Father’s behaviour – she alleged that the father was controlling, emotionally abusive and inexperienced with hands-on parenting. She argued that if the children were left in his care, his own emotional needs would take precedence and based on past behaviour, there would be a risk of him losing his temper with them.
The father denied the mother’s allegations about his behaviour and parenting capacity seeking to rely on the fact that the mother has previously left the children in his care for a week’s holiday in England. He argued that her refusal to return was a tactical move and that it was inconceivable that she would abandon the children.
The judge offered the father the opportunity to cross-examine the mother concerning her evidence about not returning, however, the father refused.
The judge directed himself carefully on the approach to Article 13(b). He considered the guidance given in the following cases, among others:
Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144, [2011] 2 WLR 1326 at [14, 32, 34, 36] ('Re E')
Re K (1980 Hague Convention: Lithuania) [2015] EWCA Civ 720 at [53]
In re A (children) (Abduction: Article 13(b)) [2021] EWCA Civ 939, [2021] 4 WLR 99 at [87-88, 92, 95] ('Re A')
In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51; [2007] 1 AC 619 at [52]
C v C (Minor: Abduction: Rights of Custody) [1989] 1WLR 654, at p.661D/E ('C v C')
S v B (Abduction: Human Rights) [2005] EWHC 733 (Fam); [2005] 2 FLR 878, at [49] ('S v B')
In re W (Children) [2018] EWCA Civ 664; [2019] Fam 125 at [57] ('Re W')
Re B (Children) [2022] EWCA Civ 1171 [2022] 3 WLR 1315 at [64] ('Re B')
Where allegations of domestic abuse are made, the judge emphasised the need for an ‘evaluative assessment of the allegations’ considering whether they raised a grave risk and if so, whether protective measures could mitigate the risk.
The judge accepted the mother’s case that she would remain in England. He considered himself duty bound to take her ‘evidence as its highest’ and accepted that he did not believe she was deliberately seeking to frustrate the policy objectives of the Convention.
The father’s case was that the judge could not ‘confidently discount the possibility’ that the mother would carry through her intention not to return, however, did not accept that returning the children without the mother placed them at grave risk of harm, or in an intolerable situation.
The judge found that separating three young children from their mother and placing them solely in their father’s care would expose them to a grave risk of psychological harm and place them in an intolerable situation. As to protective measures, the father had provided no evidence about how he would care for the children alone and therefore, no evidence had been put forward to meet the risks that had been identified. The judge rejected the submission that there was no onus on him to do so. In the absence of any safeguards, the Article 13(b) defence succeeded.
Finally, the judge considered discretion. He stated that even if he had been wrong about Article 13(b), he would not have ordered a return based on acquiescence. The uncertainty about the mother’s domestic circumstances and the high likelihood that she would not accompany the children rendered a return order inappropriate. The application for summary return was dismissed.
The father’s appeal and the Court of Appeal’s reasoning
The father appealed, advancing six grounds: his central theme being that the judge’s handling of Article 13(b), particularly the mother’s refusal to accompany the children, risked opening the door to tactical manoeuvring and undermining the effectiveness of the Hague Convention.
Ground 1 – Article 13(b)
The father argued that although the judge had identified the correct legal principles, he applied them wrongly undermining the Convention’s operation. He wrongly concluded:
- That returning the children to their father’s sole care posed a grave risk of psychological or physical harm
- That the mother would not return, thereby creating an intolerable situation
- That the mother’s own refusal to return could properly be treated as the source of intolerability
The Court of Appeal found that the judge had materially misdirected himself in law by treating the mother’s assertion that she would not return as having to be taken ‘at its highest,’ following the approach in Re E for allegations of domestic abuse.
The court held that this was wrong as:
- Non-return is not a binary issue of fact (such as consent)
- The court’s task is not to assume the truth of the assertion, but to assess the likelihood of a non-return on a summary basis
- The correct approach is a reasoned evaluative assessment of whether the parent would refuse to return. The assessment should consider:
- The overall circumstances
- The family history
- Any professional advice about the parent’s health
- The reasons given for not returning
- The possibility that the refusal was tactical
- The chance of the position changing after an order was made
Ground 2 – Physical harm
The father argued that the judge had wrongly found a risk of physical harm to the children having indicated during submissions that such a risk was ‘thin if not non-existent.’ The Court accepted that there was force in this argument but held that physical harm was peripheral to the decision, which rested squarely on psychological harm and intolerability. The error made no difference to the outcome.
Ground 3 – Protective measures
The father contented that the judge was wrong to dismiss his case on protective measures. The Court rejected this. The mother’s non-return position had been clearly raised months before the hearing, yet the father had provided no evidence or proposals as to how he could care for the children if they were returned to him alone. Furthermore, once the court concluded that a return without the mother would be intolerable for the children, the father had an opportunity to offer protective measure but did not do so. The father made no application for an adjournment and in any event, there was no good reason to adjourn to give him further time to make his case.
Ground 4 – Procedural fairness
The father argued that it was procedurally unfair to proceed on the mother’s evidence without cross-examination. The Court noted that the judge had offered the father the opportunity to cross-examine, but this was declined. Having agreed that the mother’s evidence would be taken as is, the father could not now complain.
Ground 5 – Acquiescence
The father argued that the messages exchanged between the parties, read as a whole, were simply negotiations for a hypothetical compromise.
The Court upheld the judge’s finding that the father had acquiesced for a limited period through his November 2023 messages. The judge was fully alive to the father’s case about acquiescence and reached a conclusion that was open to him.
Ground 6 – Discretion
The father stated that the judge gave no or insufficient reasons for refusing to exercise his discretion in favour of a return. The Court held that, given the findings on Article 13(b) and acquiescence, the judge was entitled to refuse a return in the exercise of his discretion. Although his reasons were brief, they were sufficient on the facts of the case. It was open to the father to ask for a fuller reasoning at the time.
Outcome
The Court of Appeal dismissed the appeal stating that even if the correct test was applied the judge would have found that there was a high degree of likelihood that the mother would not return and therefore, there was no basis upon which to interfere with the judge’s decision.
Key takeaways for practitioners
- A parent’s refusal to accompany is not to be automatically taken ‘at its highest’ (as with allegations of domestic abuse under Re F). Judges must make a reasoned evaluative assessment of the likelihood of a non-return considering:
- The overall circumstances
- The family history
- Any professional advice about the parent’s health
- The reasons given for not returning
- The possibility that the refusal was tactical
- The chance of the position changing after an order was made
- If non-return is raised, the remaining parent must address what care arrangements and safeguards would be in place for the children if they were to be returned without the abducting parent. The Court confirmed that oral evidence on non-return would only rarely be appropriate. The better approach is to ensure that witness statements are comprehensive and that in line with the 2023 Practice Guidance, detailed proposals and undertakings must be filed.
- It does not matter whether the ‘intolerability’ arises from the abducting parent’s own conduct (e.g. refusal to return), the court will focus on the reality for the child if separated from their primary carer. Therefore, the substance of the risk must be dealt with, not just challenging its origin.
The full judgment can be accessed here.
Avneet Panesar is an Associate Solicitor at ITN Solicitors specialising in all areas of children law. She has particular expertise in international children matters including parenting child abduction, cross-border contact disputes, relocation and enforcement of foreign orders. She has acted in a number of leading reported cases and regularly advises parents in the UK and abroad on complex international family law issues. She can be contacted here.