Measures offered by father adequate to protect mother and child on return to Latvia

Children|April 3rd 2019

We all know that the popular media can get things wrong when it reports on legal cases, misunderstanding why the court has made the decision it has. But sometimes it is not so much that the media gets it wrong, more that the media misses the real point of the case.

So it was with the recent child abduction case A (A Child) (Hague Abduction; Art 13(B): Protective Measures). The case was referred to by a certain national newspaper, under the headline: “Mum who thought daughter would have better life in UK is ordered to go back to Latvia”. As that headline indicates, the report suggested that the mother brought her daughter to England simply because she thought her daughter would have a better life here, and told us that Mr Justice Williams, hearing the case, decided that decisions relating to the child’s future should be made by the Latvian courts. Accordingly, he ordered the mother to return the child to Latvia.

In fact, the crucial issue in the case related to a point only touched upon by the newspaper report: the mother’s allegation that she had been subjected to domestic abuse by the father.

The relevant facts of the case were as follows. The mother, father and child (who was born in December 2014) are all of Latvian origin. The mother brought the child to the United Kingdom in the summer/early autumn of 2018, without the agreement of the father, and had been living here ever since with her mother.

The father made an application for the child’s summary return to Latvia, pursuant to the Hague Convention on Child Abduction. The mother raised a defence under Article 13(b) of the Convention: that there was a grave risk that her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation. The mother alleged that the father had subjected her to domestic abuse, both of a physical and coercive/controlling nature.

The father denied the mother’s allegations, and offered the court certain ‘protective measures’, to ensure that the mother and child would be safe upon their return to Latvia. These included the following undertakings (or promises to the court):

  1. Not to remove the child from the mother’s care, pending a hearing in the Latvian courts.
  2. To initiate proceedings in the Latvian courts so that if the mother and child returned, there would be a hearing before a judge who would be able to discern what the arrangements should be for the child,
  3. Not assault, harass, threaten, interfere or molest the mother, whether by himself or any third party.
  4. To vacate the property where he and the mother had lived, and allow the mother and child to reside there until there was a hearing in the Latvian courts.

Mr Justice Williams considered the evidence of the mother and father. He did not make a determination as to whether the mother’s allegations were true, but found that if they were they would amount to domestic abuse at a relatively high level. Accordingly, taking the mother’s allegations at their highest, as he had to do, the Article 13(b) ‘threshold’ was certainly met.

The question, then, was whether the protective measures offered by the father were sufficient to address the identified risk. Mr Justice Williams found that they were: the measures would provide the mother with the necessary protection, and could be registered in the Latvian courts, so that they were enforceable there. In practice, that meant that the mother could not establish her Article 13(b) defence, and accordingly Mr Justice Williams ordered the return of the child to Latvia.

Going back to that newspaper headline, it was true that the mother had said that she thought that the child would have a better life in this country. However, as we have seen, the real issue in the case was not where it would be best for the child to live (that will be a decision for the Latvian court, if the mother makes an application there to remove the child to this country), but whether it would be safe for the child to return to Latvia.

You can read the full judgment here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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Comment(1)

  1. Stitchedup says:

    So let me try to this right…. The mother makes untested allegations of domestic abuse and the father has to agree to an extensive list of undertakings just to get to see his child??? Yet the mother has effectively abducted the child but she gets to kick the man out of his home and slap a gagging order on him???

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