Family: The slide rule of grave risk

The Inner House recently clarified the defence under article 13(b) of the 1980 Hague Convention on Child Abduction, incorporated into our domestic law by the Child Abduction and Custody Act 1985.

In AD v SD [2023] CSIH 17 the mother, SD, was a Scottish and US citizen who married a US citizen, AD, and moved to Illinois, having two children of the marriage now aged seven and four. In June 2022, with AD’s consent, she travelled to Scotland for a holiday. A return booked for August did not occur, SD stating that she could not return for fear of her safety and that of the children. Both children were habitually resident in Illinois. It was accepted that there was a wrongful retention in terms of the Convention.

First, AD raised proceedings in the US for dissolution of the marriage. He sought orders including the majority of parenting time and that SD should not receive temporary or permanent maintenance. He subsequently also sought an emergency order seeking the children’s return through the Illinois court under the Convention.

The Illinois court found that SD had abducted the children and ordered their return. On her failure to comply, AD sought indirect civil and criminal contempt findings, and penalties including imprisonment. The request for criminal contempt was subsequently withdrawn. In October 2022 AD raised a petition in Scotland under the Convention for return of the children.

Outer House procedure

Such petitions should proceed expeditiously and on affidavit and documentary evidence only. A second hearing was fixed for January 2023. SD advanced an article 13(b) defence that there was a grave risk to the children should they return to Illinois. She produced screeds of text communications from AD dating from a previous visit in 2021 and continuing right up to date. These messages were said to support psychological, physical, sexual and financial abuse at the hands of AD. Affidavits from SD were lodged alongside an electronic diary which contemporaneously recorded alleged assaults, including her attempted rape and strangulation by AD. AD accepted that the text messages were his, but disputed that they amounted to abuse. He denied allegations of physical and sexual abuse and contended that undertakings offered would meet any concerns of SD regarding return. SD produced expert evidence that such undertakings were not directly enforceable in Illinois.

The Lord Ordinary made avizandum. Ten days later, she “continued” the second hearing ex proprio motu, requesting to be addressed on availability of protective measures in Illinois and inviting AD to lodge further evidence. In a note she stated that the proceedings were not purely adversarial and the court could make its own enquiries regarding protective measures and to receive a full draft of any proposed consent order to be lodged in Illinois. This was not equivalent to reopening the proof.

On 9 February the Lord Ordinary indicated her intention to order the children’s return, conditional on AD withdrawing the civil contempt application and parties entering into a consent order in the Illinois court. She accepted that the text messages demonstrated unrelenting harassment and an intention to humiliate, degrade and frighten SD, with AD demanding sexual gratification at his request, and expressing misogynistic views. However such messages did not show that the children would be exposed to grave risk, and although expert psychological evidence indicated that they were adversely affecting SD’s mental health, it did not suggest this would impact on her parenting ability. AD’s misogynistic views could be considered by the Illinois court; allegations of financial abuse were not clearly controlling in aim, but could be legitimate disagreements about money, and the children were not impacted.

The disputed allegations of physical and sexual abuse raised a strong prima facie case for protective measures. While there was no evidence that the children were at risk of direct physical harm in AD’s care, they would be exposed to grave risk should they witness abuse of SD. On information from US attorneys, it was recognised that there was little likelihood of AD accessing legal aid funding in Illinois and that she had no resources pay for legal representation, but the Lord Ordinary concluded that she had sufficient legal remedies available. The correct approach was to assume that the requesting court could protect the children in its jurisdiction unless there was compelling evidence to the contrary. Temporary protective measures were available, and the courts could order AD to fund her attorneys’ fees (though he now claimed to be impecunious).

Although standard orders granted by the Illinois court when the original actions were raised, preventing unacceptable conduct by either party, had been breached through the abusive text messages, the Lord Ordinary considered AD would be motivated to comply with future orders in his home country while the parenting of his children was being litigated. The focus of Hague Convention proceedings was to have children brought back before the courts of their habitual residence swiftly. The consent order would regulate matters meantime. The medical evidence did not support the proposition that the indirect contact by AD proposed in the consent order would cause any deterioration in SD’s mental health so as to place the children at grave risk, and SD could not subvert the operation of the Convention by refusing to agree to the consent order.

Inner House approach

On appeal, Lady Wise stated that while the abducting party has the onus of establishing the defence, which might fail in the absence of extraneous supporting evidence (D v D 2002 SC 33), since the decision of the UK Supreme Court in Re E [2012] 1 AC 144, the approach is more nuanced where an article 13(b) grave risk defence founding on domestic abuse is pled. The court must first ask whether, if the disputed allegations were true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk, the answer to which would vary from case to case and from country to country.

At the first stage, the nature and severity of the risk to the children needs to be evaluated. The importance of that analysis lies in determining the relationship between the level of risk and the need for protection. A high risk of severe harm would require to be balanced by more effective protection than a lower risk of either that or of less severe harm (Re E, para 52), thus a “delicate slide rule type balance [must] be struck between the assessed risk and the protective measures offered” (opinion of the court, para 27). Furthermore, in principle, where one party’s perception of events leads to a risk to mental health, this can establish an article 13(b) defence.

If there is a grave risk of the children being in an intolerable situation as a result of the mother’s suffering, that may be sufficient (Re E, para 34). The question is not whether her anxieties are reasonable but what would happen if the children returned with her. If the effect on her mental health would create an intolerable situation for the children, they should not be returned (Re S (a child) (Abduction: Rights of Custody) [2012] 2 AC 257). The court requires to look prospectively. Any measures designed to protect the returning parent must do more than cover the immediate future.

Risk assessment

The risks here were established. They were of the most severe type, including physical injury by strangulation in the presence of the children. AD also threatened in the presence of the children to kill himself. SD described a number of sexual assaults, including attempted rape, and numerous verbal and physical assaults in the presence of the children.

Having accepted that there was a strong prima facie case, the Lord Ordinary should have assessed the severity of the risk before considering the adequacy of the protective measures. The allegations needed to be viewed with an objective assessment of SD’s distress and the undisputed text messages. Could AD be deterred from treating SD in a manner that exposed the children to harm or placed them in an intolerable situation? There was no clear assessment of the nature and gravity of the risk, and no testing of the proposed protective measures against a particular risk at a particular level.

The dispute was not the legal remedies available in Illinois, but SD’s access (or otherwise) to legal representation and whether AD could be trusted to comply with orders of the Illinois court. The Lord Ordinary had concluded there was no reason to think that a party litigant would not be dealt with fairly there, but acknowledged that SD would be prejudiced without an attorney. Her conclusion regarding AD’s motivation to comply with future court orders was difficult to understand. That issue should have been tested fully and balanced against the severity of the risk posed by the disputed allegations if true, combined with SD’s lack of recourse to effective court enforcement in Illinois. The Lord Ordinary had erred in failing to carry out that risk assessment, and the matter was at large for the appeal court.

Return “inconceivable”

The court concluded that the combination of factors relied on by SD was sufficient to establish the defence of grave risk. The factors should not be considered separately but as a whole. There was objective evidence of a high risk of possibly irreparable harm posed by AD, coupled with his lack of insight and refusal to accept that the messages constituted abuse. He had only offered a 30 day period where the proposed consent order would provide protection to SD, and this was not a case for only short-term measures. The protective measures offered would be unlikely to deter AD. He had persistently breached the Illinois court order throughout the Scottish proceedings and his reluctance to agree to further measures was of additional concern. It was “inconceivable that a return would be ordered given the material before” the court (para 41). Thus the petition was refused.

Commentary

While this is a case which turns on its own facts and circumstances, the clarity provided in the two-stage process of how to assess grave risk and protective measures should always be at the heart of assessing an article 13(b) defence. Had this appeal been unsuccessful, it would be hard ever to establish this defence in the future. The “delicate slide rule” of level of risk is helpful to determine the level of protection needed and whether that will ever be enough. Evidence requires to be considered in the round to assess risk.

Separately, the appeal had sought to take issue with the competency of the procedure adopted by the Outer House. The court acknowledged that the Hague proceedings were still adversarial, and all the rules of fair notice and fair hearing still applied. Parties needed to know the case against them and to be able to respond to it. The judge was entitled to reach a decision on grave risk and then continue until protective orders were in place, but the court discouraged any procedural route that appeared to disadvantage one side by detailing how one party could make their case stronger.

Morton Fraser acted for the mother in the proceedings discussed