Claire Edgar

The High Court in Belfast has recently handed down a decision in the Matter of K (a minor), a Hague Convention case in which Francis Hanna & Co acted on behalf of one of the parents.

The application was brought for the return of a child to the Netherlands under the provisions of Article 12 of the Hague Convention 1980. We acted for the defendant in these proceedings who had removed the child from the Netherlands to her country of origin, Northern Ireland.

It was accepted that the child’s place of habitual residence was in the Netherlands and therefore the crux of the case lay on whether an exemption under Article 13(b) of the Hague Convention would apply.

Article 13(b) states that an Order for the return of the child to the country they have been taken from should not be made in circumstances where there is a grave risk that the child’s return would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

The judgment in this case emphasised that there must be a high level of risk and that the burden of proving this risk lies with the person who is opposing the return of the child to the country from which they were removed. In this case, it was established that there was evidence that the plaintiff’s behaviour towards the defendant during their relationship did reach the high threshold required and amounted to a grave risk of, if not physical harm, psychological harm and an intolerable situation.

The plaintiff accepted that she had been violent against the defendant in the past and indeed had been convicted of assaulting the defendant. She also accepted that she had directed abusive language towards the child and aggressive behaviour in his presence.

Having proved this grave risk of harm, the court then had to consider Article 11 of Brussels IIR which states that a court cannot refuse to return a child on the basis of this grave risk if it is established that adequate arrangements could be made in the country of return (in this case, the Netherlands) to secure the protection of the child should they return.

The judge indicated that the case came down to the protective measures which were available to guard against the established risk. The judge engaged in judicial liaison with the judiciary in Netherlands to consider the efficacy of the protective measures which could be put in place.

Given the risk of domestic violence posed to the plaintiff and the resultant risks to the child, the judge was not satisfied that undertakings which would traditionally be offered to courts in Hague Convention cases would be sufficient protection. These undertakings are based on trust and the court required that the protective measures available must actually be in place in the receiving country prior to and upon return.

The court adjourned the case to allow these protective measures to be put in place. This having been done, the court determined that it did not consider that it should refuse to return the child on the basis of the grave risk of psychological, physical harm or an otherwise intolerable situation because protective measures would be put in place in the receiving country.

The case also considered the impact of the Covid-19 pandemic and the judge indicated that the court would apply the principles underpinning the Hague Convention first and then consider practical arrangements. At the time the judgment was delivered, there was free travel to the Netherlands and no quarantine restrictions.

• Claire Edgar is a partner at Francis Hanna & Co Solicitors.