The recent case of Re L (Article 13: Protective Measures)(No.2) [2023] EWHC 140 (Fam) shows how the Court approaches ‘protective measures’ where a child is Ordered to be returned to a country and what the consequences to the parent offering them of failing to carry these out.
A father applied for the return of his child to Belgium. In earlier proceedings pursuant to the Hague Convention the Court had to decide whether “there [was/is] a grave risk that the child’s return would expose [him] to physical or psychological harm or otherwise place [him] in an intolerable situation” (Article 13(b) 1980 Hague Convention).
To help with their return, the father had offered a range of ‘protective measures’ including providing the mother and child a flat for them to stay at for the first three months of their return to Belgium. This was accepted by the Court and the Court made a Return Order, making it clear that this was conditional on proof being given of the accommodation being provided for a period of three months. The father was given three weeks to finalise the arrangements for the property that he had identified.
A further hearing was listed at which the father did not attend. He was given the chance to explain his position in a statement which he did but outlined that he could only provide evidence that he could find a further property but could not commit to paying for that property as he had earlier offered. Crucially this was different to his earlier position which led to the Return Order being made.
In light of the change, the Court dismissed the application made by the father and discharged the earlier made Return Order.
The Court said that it was obvious that the child needed somewhere to live. If it was to Order the child’s return now, they would be placed in an intolerable situation as the father had failed to carry out what he said he would. The application made by the father was dismissed.
The case reminds us of the need to offer protective measures but also to ensure that those are measures which can actually be implemented in the country to which a child may be returning.
