CS & Another v PD [2017]: The Hague convention, Article 13, and putting the children first

This ‘unusual’ case, so labelled by Mr Justice Holman in his judgment, which was finally resolved in April this year, emphasizes that, whilst statute can provide clear guidance in key elements of a case, it is always important for the court to continue to treat all children cases on a case-by-case basis.

This case involved a mother, her two children, and each child’s father. Whilst the mother had been living in the USA with both children and her husband, who was the father of the younger child, without either father’s consent, she brought the two children to England. At the lengthy and contested hearing before Mrs Justice Roberts, ending in October 2016, it was ruled that this had been a wrongful removal, and thus the court made an order for the summary return of the children to the USA.

In making this order, the court rejected the mother’s argument that, under Article 13 of the European Court of Human Rights, such an order constituted a grave risk of psychological harm because of her own mental health and profound anxiety at the thought or prospect of her daughters returning to the USA. However, Mrs Justice Roberts concluded that, on the evidence available before her at that stage, those matters did not amount to a grave risk of psychological harm to either child so as to trigger the exercise of discretion under Article 13 of the ECHR.

In ordering that the children be returned to the USA, the court was acting in keeping with the law and remedying their wrongful removal, however, following this decision, the mother suffered a severe deterioration in her psychiatric well-being. Therefore, in this worsened state of health, the mother applied to set aside the court’s order that she return the children on the grounds of a significant change in circumstances, which application the fathers opposed. The court decided that the mother’s psychiatric health had to be evaluated, and therefore a psychiatrist was jointly instructed by the parties to assess the mother. The psychiatrist concluded that the mother had suffered, and continued to suffer severe psychiatric ill-health, and that this would only deteriorate further if she had to return the children to the USA. In light of this assessment, both fathers withdrew their applications for the return of the children to the USA, acknowledging the severe effect that this had had on the mother as well as the subsequent negative impact this would have on the children.

Therefore, although its facts are unique, this case reflects how important it is to remember that there are no ‘winners’ or ‘losers’ in children proceedings; the court’s focus will always be directed to the best interests of the child and which arrangements will be best for the child. Whilst it is laudable that the fathers in this case were able to set their personal wishes to one side and allow the children to remain with their mother in the UK, the real ‘winners’ are actually the children, for whom the court proceedings have finally paused. It is worthy of note that the conciliatory attitude of the fathers also allowed one of them to reach a greater agreement with the mother in respect of child arrangements. Therefore, this case also highlights that, where the parties are amenable, child arrangements can be best negotiated without the courts’ involvement, and even when applications are rightly made to the court, these can help focus the parties’ attentions to the issues truly at stake.

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