UKSC 27
On appeal from:  EWCA Civ 361
E (Children) (FC)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
10 June 2011
Heard on 23 and 24 May 2011
Henry Setright QC
(Instructed by Freemans Solicitors)
James Turner QC
(Instructed by TLT LLP)
Baroness Scotland QC
(Instructed by Dawson Cornwell)
|Intervener (The AIRE Centre)
(Instructed by Mishcon de Reya)
|Intervener (Reunite International)
(Instructed by Bindmans LLP)
|Intervener (Women's Aid Federation of England)
Stephen Knafler QC
(Instructed by Sternberg Reed)
LADY HALE AND LORD WILSON, DELIVERING THE JUDGMENT OF THE COURT
(i) Article 3(1) of UNCRC applies just as much to the decision to return a child to her place of habitual residence under the Hague Convention as it does to any other decision concerning a child. The current approach to article 13b, at least in the courts of England and Wales, does not properly respect the requirement that the best interests of the child be a primary consideration.
(ii) That argument is supported by the decision of the Grand Chamber in Neulinger, which is the principal authority on the primacy of the best interests of the child in the interpretation and application of the Convention rights.
(iii) In any event, the purposes of the Hague Convention are properly achieved if article 13b is interpreted and applied in accordance with its own terms. There is no need for the "additional glosses" which have crept into its interpretation in English law. It is quite narrow enough as it is.
Article 3(1) of UNCRC
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
Although the UNCRC has not been incorporated into our domestic law, there are many examples of domestic statutes requiring courts and public authorities to have regard to the welfare of the children with whom they are concerned. Sometimes, as in section 1(1) of the Children Act 1989, the court is required to treat the welfare of the child as its "paramount" consideration; sometimes, as in section 25(1) of the Matrimonial Causes Act 1973, it is the "first" consideration; sometimes, as in section 11 of the Children Act 2004 and section 55 of the Borders, Citizenship and Immigration Act 2009, a public authority is required to perform its functions having regard to the need to safeguard and promote the welfare of children. The last two, in particular, are clearly inspired by our international obligations under UNCRC. As was pointed out in ZH (Tanzania), para 25, "a primary consideration" is not the same as "the primary consideration", still less as "the paramount consideration". The Court went on to endorse the view taken in the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 292, that a decision-maker "would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it".
The ECHR and Neulinger
"138. It follows from article 8 that a child's return cannot be ordered automatically or mechanically when the Hague Convention is applicable. The child's best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences. . .. For that reason, those best interests must be assessed in each individual case. That task is primarily one for the domestic authorities . . .
139. In addition, the court must ensure that the decision-making process leading to the adoption of the impugned measures by the domestic court was fair and allowed those concerned to present their case fully. . .. To that end the court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin (see Maumousseau and Washington, … para 74)."
". . . the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - (a) . . . ; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. . . . In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence." (emphasis supplied)
"It is obvious, as Professor Pérez-Vera points out, that these limitations on the duty to return must be restrictively applied if the object of the Convention is not to be defeated: [Explanatory Report to the Hague Convention] para 34. The authorities of the requested state are not to conduct their own investigation and evaluation of what will be best for the child. There is a particular risk that an expansive application of article 13b, which focuses on the situation of the child, could lead to this result. Nevertheless, there must be circumstances in which a summary return would be so inimical to the interests of the particular child that it would also be contrary to the object of the Convention to require it. A restrictive application of article 13 does not mean that it should never be applied at all."
Application to this case