Russell-Cooke's family and child law team recently acted in a successful appeal (Re B) confirming that oral evidence can be necessary when considering whether consent was in fact granted in an alleged child abduction in Hague Convention cases.
This is the case even though Hague Convention child abduction proceedings are summary proceedings and the Court of Appeal confirmed that there should not be a blanket policy of preventing oral evidence where it is necessary to determine the truth of the position, contradicting some recent comments made in High Court cases which had begun to suggest that oral evidence should not be heard, even in cases where consent was being argued.
The judgment reaffirms how defences under Article 13(b), where there is a grave risk that the child’s return would expose the child to physical or physical or psychological harm or otherwise place them in an intolerable situation, are to be dealt with and that risks must be considered as a whole rather than individually.
The team represented the Appellant mother accused of abducting her children from Spain to England. The father’s case was that he did not consent to the mother removing the children to England or retaining them in England. The mother’s case was that the father consented to both the removal and to her retaining the children in England.
The mother also alleged that the father had been physically abusive to her and the children and that he had controlled her. The mother considered the children to be at grave risk of harm if the court ordered them to be returned to Spain.
The Judge at first instance ordered the children to be returned to Spain. The mother appealed on two grounds; firstly that oral evidence should have been heard in respect of the disputed question of whether the father had consented to the children moving to England and secondly that the Judge incorrectly applied the grave risk of harm defence test.
The father’s case was that the Judge was entitled to determine the issue of consent without hearing oral evidence as he believed he had sufficient documentary evidence to determine this and while the Judge may have conflated the grave risk of harm defence approach he had sufficiently analysed the evidence and reached a conclusion that was open to him.
The Court of Appeal granted the mother permission to appeal and gave permission for Reunite Child Abduction Centre to intervene in the proceedings given their interest in how child abduction proceedings would be conducted in the future.
Reunite provided information to the court as to how the question of oral evidence was dealt with in other countries around the world when dealing with Hague Convention child abduction cases.
The mother’s appeal was allowed on both grounds and the return order made was set aside, with the Court of Appeal ordering a rehearing of the father’s application for the children to be returned to Spain. The father is now seeking permission to appeal to the Supreme Court.
The Russell-Cooke team consisted of a senior associate and associate Helena French.
“This case was exceptionally important because it cannot be right that oral evidence should not be heard in cases when it was clearly necessary to determine the truth. It was also critical to our client that her allegations of harm were looked at collectively as opposed to in isolation. We are extremely proud to have secured a successful outcome for our client in pursuing this important case."