Re E: TLT Supreme Court success

Updated September 2011

Of the thousands of Family cases before the courts in England and Wales each year, only a few are ever heard in the Supreme Court. It is therefore not every day that you have the satisfaction of knowing that you have successfully defended a client in an appeal brought before the highest court in the land.

Re E – the facts

In the case of Re E (Children) [2011] UKSC27, David Wheeler, associate in TLT's Family team, represented the father; a Norwegian national who was seeking the return of his two children aged 4 and 6 to Norway. The mother admitted from the outset that she had abducted the children and taken them to London without the father's consent. She based her defence on Article 13(b) of the Hague Convention, arguing that an order requiring her to return the children to Norway would expose them to a grave risk of physical or psychological harm or an intolerable situation. At the first hearing she produced evidence from a psychologist that she suffered from a depressive illness which would be exacerbated if she returned to Norway. That would affect her ability to care for the children. Her argument was rejected by Mrs Justice Pauffley in the Family Division who found that the package of support and undertakings offered by the father would provide the mother and children with sufficient protection pending a decision on custody in the Norwegian court.

The appeal

The mother appealed that decision arguing that there should have been a full welfare investigation and that approach had some support from four recent decisions in the European Court of Human Rights. The Court of Appeal and now the Supreme Court rejected that argument.

This was a welcome decision and one which will have a beneficial impact for abducted children throughout Europe. The underlying principle of the Hague Convention is to return children to their home country so that the parents can resolve the issues of custody and access in the home jurisdiction. The practical effect of a full welfare investigation in every Article 13b case would inevitably be delay and increased cost which would only prolong the period of uncertainty for the family while the investigation was completed.

In this particular case, the two children have been successfully returned to familiar surroundings in Norway and are able to spend time with both parents whilst the Norwegian court makes a final decision on custody.

Through David's involvement with Reunite, a national charity which provides assistance and support for parents whose children have been abducted, David is contacted by distraught parents from many jurisdictions who need urgent help in dealing with this difficult issue.

David Wheeler is a nationally-recognised child abduction law expert. He can advise parents on what steps to take if a child is abducted, or if a parent feels abduction may happen.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at September 2011. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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