Family Law Hub

X v Y and Z Police Force and A, B, C [2012] EWHC 2838 (Fam)

  • In brief: An application brought under Child Abduction and Custody Act 1985 and Hague Child Abduction Convention 1980 by a mother ("M" - known as X during the proceedings) who sought the summary return to Australia of her three children aged between 7 and 13 years old. It was accepted that the children's father ("F" - known as Y during the proceedings) had abducted the children from Australia to England. Uniquely, F's employers, Z Police Force were also respondents in the proceedings. 

    F accepted that he had wilfully removed the children without M's consent. He put forward two defences to their summary return:

    • firstly (and this was advanced with the full support of Z Police Force), a summary return would place the three children at grave risk of harm, or otherwise put them in an intolerable situation, because F had been employed as an undercover police officer for many years and, after being relocated in Australia a few years ago, circumstances had now arisen which rendered it unsafe for him or his family to return to Australia, at least until extensive further work had been carried by Z Police Force and their Australian counterparts, including a detailed and thorough risk assessment; and
    • secondly, he asserted that the eldest child, A, objected to being returned summarily to Australia and that in light of that objection the court should exercise its discretion not to return him. Further, to return the two younger children without their older brother would place them in an intolerable situation so the court should refuse to order their return under Article 13(b) Hague Convention 1980.

    M agreed that the three children should not be split and conceded that, if the court concluded that A should not be summarily returned on the grounds of his objection, all three children should remain in this country pending a final decision as to their residence and welfare.

    The facts of the case were set out in quite some detail. The most interesting parts perhaps relate to F's employment in Z Police Force. Over the years F had been deployed in situations in which he had come into contact with hundreds of criminals involved in serious organised crime. Evidence from Z Police Force suggested that F had supported over 100 operations as an undercover officer; in the course of various prosecutions, it had been necessary for him to give evidence and such evidence had been delivered using a pseudonym, with F's real identity being protected by a series of witness anonymity orders. On each occasion F had had to give evidence, a significant armed security operation had been needed to counter the threat to his safety. Z Police Force's evidence was that, as a result of his work, there was and remained a clear threat to F and his family, although the level of that threat could not be measured with any certainty. 

    F alleged that, immediately after the abduction, M had taken certain steps that had compromised the family's safety including revealing F's true identity to local police forces, journalists and the Metropolitan Police. M denied she had done anything to jeopardise the family's safety. However, by the time of the hearing, M had also returned to the UK and arrangements had been put in place for interim care of the children to be shared. 

    Mr Justice Baker accepted the evidence from Z Police Force as to the risk posed to F and the processes which needed to be followed before the children could be safely returned to Australia. He found that the Article 13(b) defence had been established because of the evidence that had been given that F was at a particularly high risk as a result of his work as an undercover officer and that M was not as well equipped as Z Police Force to assess the level of that risk. It was acknowledged that the process to enable the family's return to Australia could take a number of months and that the Australian authorities were not in a position to be able to impose interim protection measures to ensure the family's safety if the children were to be immediately returned. Despite the fact that F's actions had been unwise, dangerous and "wholly irresponsible" in exposing the children to a grave risk of harm, Mr Justice Baker considered that that of itself did not justify ordering the children's return if such a return would expose them to further risk. If the court reached the conclusion that returning the children would expose them to a grave risk of harm or place them in an intolerable situation, the court was under a duty to refuse the application for summary return.

    Further, Mr Justice Baker was satisfied that A had a clear and strong objection to returning to Australia; his views had to be taken into account. Accordingly, the application for summary return was refused.

Case note, published: 05/12/2012

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Published: 05/12/2012

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