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A-M (A Child: 1980 Hague Convention) [2021] EWCA Civ 998

8th July 2021

Judgment: The mother appealed against an order to return her one-year-old child to his father in Norway, made pursuant to the Hague Convention 1980 after the judge decided that she had failed to establish an Article 13(b) defence. She had alleged domestic violence, such as the father hitting her with the blunt side of a knife while she held the baby, strangling her, and slapping her. Considering a video where the father said "I will kill you, I will kill you" to the child, the judge had found that those words "do not appear spoken in anger or with intent", and he could not find that the video "demonstrated to the required standard that the father was intending to make a serious threat of harm". In Coulson LJ's view, there were four critical questions. Did the judge make appropriate assumptions based on the mother's evidence? Was there a clear evaluation of the risk to the child? Did the judge have regard to and consider all the evidence? And what was his evaluation of the sufficiency of the protective measures? Nowhere in the judgment had the judge said that he was prepared to assume that any of the mother's allegations were true, nor had there been an analysis of whether, if what the mother said was true, the nature, detail and substance of her evidence established a grave risk to the child. The judge had erred in law in carrying out the evaluation and arriving at the answer in the way that he did. He had failed to adopt the approach set out in Re E (Children) [2011] UKSC 27; failed to answer the question that he had posed himself ("would the allegations which the mother makes, if true, be sufficient to create a grave risk of such harm?"); arguably failed to have regard to all of the evidence; and had not considered the issue of protective measures in the factual circumstances that were likely to apply, namely the child being returned to Norway without his mother. Moylan LJ and Nugee LJ agreed. The matter would be remitted for an urgent re-hearing, if possible before a judge of the Family Division.