Case Study #4 - Adequate Arrangements (art. 11.4 Brussels IIa reg.)

Greta (an Austrian national, habitually resident in UK) and Thomas (a UK national) got married in 2001 in England and have lived here with their two daughters (now 10 and 6 years old) most part of their common live. Unfortunately, the marriage was blighted by issues in relation to Greta’s mental health. The documents in the proceedings show that she has had a long history of mental illness, has been diagnosed with depression, severe depression and, in September 2012, was suffering from an emotionally unstable personality disorder.

Greta’s mental health difficulties gave rise to extreme stress within the marriage, culminating in the father issuing proceedings in 2013 before the British Court – supported by the Local Authority. He sought and obtained residence and prohibited steps orders in respect of both children as well as non-molestation orders made against the mother.

However, during the course of 2013 and early 2014 the parties gradually reconciled. As part of their process of reconciliation the prohibited steps order was discharged and the parties decided to relocate to Austria, where they would try to start anew.

Thomas found a new job in Vienna; the real estate in UK was sold and a new apartment was found in Vienna; the children were enrolled into the American school in Vienna and were introduced to new friends. In August 2014 the whole family relocated to Vienna and the family began a new life there.

However, the difficulties in the marriage did not abate. By beginning 2015 family situation was again very tense. Thomas makes very serious allegations against Greta, saying that she very quickly fell again into depression and abused him and their daughters grossly both verbally and physically.

He then took the view that the protection of both himself and his daughters required him to take drastic unilateral steps. At the end of the summer 2015 Thomas decided to unilaterally and covertly remove the girls by car from Austria and to bring them to UK

Jane now files before the English court with an application under the 1980 Hague Convention for the return of the children to Austria, based on the habitual residence of the girls in Austria and their illegal transfer to UK.

Thomas asks the Court to refuse such return, alleging an Article 13(b) defense based on the grave risk of psychological harm.

How should the UK Court decide?

(drawn from [2015] EWHC 1817 (Fam), RB v DB, 4^th June 2015)

Should the UK Court order or refuse return?
Is the Article 13(1)b defence given? is there a grave risk of harm in returning the children? If yes is the answer, is it possible to minimise such a risk through “adequate arrangements”?
If measures for a ‘safe return’ are possible, on what grounds should such measures be better taken?
Can the 1996 Hague Convention play a role in this respect?
What should the content of such measures be?

Now suppose that, in the course of proceedings the children have been heard by a social service’s officer. The eldest (10 years old) opposes to her return in Austria in these terms: “I do not feel that the protective services in Austria will be able to adequately support and protect me. The police have no knowledge or experience of the family history and I feel isolated there. Whereas in England I feel the police and social services are actively available and have knowledge of family circumstances and can take action which will be respected and adhered to by my mother. I generally have more faith in England being more protective than Austria. Also daddy does not speak German and this may potentially place him at a disadvantage.”

How does such a declaration change the decision of the Court?

Does such a view amount to an Article 13(2) defence (opposition of the child)?