Child abduction appeal allowed on basis of "grave risk"
A Lord Ordinary erred in failing to conduct an appropriate risk assessment before ordering two children to be returned to Illinois, USA, under the Chid Abduction Convention, where the mother (SD) would face disadvantages without legal representation there and the father (AD) had shown he could not be trusted to comply with court orders restraining his behaviour, the Inner House has held.
Lord Malcolm, Lord Tyre and Lady Wise gave the decision in allowing a reclaiming motion (appeal) by SD, who had refused to return to Illinois with the parties' daughters, now aged seven and four, after coming to Scotland for a holiday in the summer of 2022, against an order for the return of the girls.
AD had brought proceedings, first in the Illinois court seeking an order for the return of the girls (which was granted) and a finding that SD was in contempt of court (which was continued), and then in Scotland. SD defended the latter on the basis of grave risk to the children if they were returned. She alleged that she had been subjected to psychological, physical, sexual and financial abuse by AD while they lived together, relying in support on voluminous text communications from AD between 2021 and early 2023.
The Lord Ordinary continued a second hearing on the petition for further information on the availability of protective measures, then granted an order for return on the basis that AD had moved for the contempt proceedings to be withdrawn, and that while SD had raised a strong prima facie case for a need for protective measures, there were sufficient measures and remedies available in the Illinois courts.
Giving the opinion of the Inner House, Lady Wise said that where the "grave risk" defence was raised, a staged approach was needed: first, consider the effects on the children if the allegations were true, and if it concluded there would be a grave risk, how the children could be protected against the risk. The first stage required an evaluation of available material; here, although concluding there was a strong prima facie case, the Lord Ordinary had not assessed the severity of the risk, which would have informed the assessment of the effectiveness of the proposed protective measures at the second stage:
"The issue in this case was whether and to what extent AD could be deterred from treatment of SD that would expose the children to harm or place them in an intolerable situation. Absent a clear assessment of the nature and gravity of the risk, the proposed protective measures were being assessed at face value, rather than being tested against a particular risk at a particular level."
It was difficult to understand, on evidence of numerous breaches of a previous protective order, why the Lord Ordinary was not prepared to conclude that he would fail to comply with a further prohibition imposed by the Illinois court, particularly if SD would face disadvantages without legal representation (legal aid would not be available). She erred in failing to consider this combination of disadvantages and the matter was open to the court to consider of new.
The combination of factors on which SD relied was sufficient to establish "a grave risk that harm to [AD] of the most severe kind (physical injury or worse) would occur" if she and the children were returned. That would place the children in an intolerable situation. The "voluminous and offensive" text messages contained themes of, amongst others, belittling and emotional abuse, economic abuse and restriction of freedom of action, misogyny, and threats of violence including extreme sexual violence. SD also exhibited post-traumatic symptoms which appeared to be related to abuse by AD. On SD's affidavit, incidents had taken place in the presence of the children.
Lady Wise continued: "There is ample material from which it can be concluded that there is a grave risk to SD and the children that they will be exposed to uncontrolled and irrational behaviour if they are returned to within close proximity of AD. The risk of consequent harm, both psychological and physical, is extremely serious." This was not a case where only short term protective measures would be sufficient; and the court was unable to conclude that it was likely that AD would comply with any such court orders.
SD had therefore established the grave risk defence; and while the court still had a discretion to order the children's return, "it would be inconceivable that a return would be ordered given the material before us and we shall refuse so to order".
The court further observed that it was not appropriate for the second hearing to have been continued for further information to be obtained from Illinois, but it would have been competent for the case to have been put out for a by order hearing "to discuss the mechanics of what would require to be in place in terms of enforceable orders before a return could occur". The appeal would therefore not have been allowed simply on the basis of the procedure followed.