Borgarting lagmannsrett (Borgarting Court of Appeal)
Lars Jorkjend, Agnar A. Nilsen jr., Harald Georg Nyhus
30 August 2007
Grave Risk - Art. 13(1)(b)
1 child wrongfully removed at age 6 – National of the United Kingdom and Norway – Married parents– Father national of the United Kingdom – Mother national of Norway – Parents exercised joint rights of custody – Child lived in the United Kingdom until 5 June 2007 – Application for return filed with the Central Authority of Norway on 25 June 2017– Return ordered – Main issue(s): Article 13(1)(b) – the exception was not met, the risk must be serious and must relate to harm or an intolerable situation for the child. Although harm to the child’s next-of-kin may also entail a risk of the child being harmed psychologically but the risk was not sufficiently serious in this case.
The case concerned a child born in 2001 to a Norwegian mother and British father. The couple married in 1994, had their son in 2001, and had their final shared habitual residence in England. In June 2007, the mother travelled to Norway with the child. The father considered that the move constituted an unlawful child abduction, and applied for the child to be returned under the Hague Convention. The case was heard by Follo District Court in July 2007, and the court held that the child should be returned to England. The mother argued that that the father was violent, and appealed to Borgarting Court of Appeal claiming that return should be refused.
The ruling of the District Court was affirmed by unanimous ruling, and the return order was upheld. The exceptions to the duty to return did not apply, and the conditions for return were therefore met. The ruling was appealed to the Supreme Court, but the Appeals Selection Committee rejected the appeal.
Author: Bjarte Wivestad Engesland, Higher Executive Officer, Royal Norwegian Ministry of Justice and Public Security
The court stated that section 12 (b) of the Child Abduction Act (corresponding to “grave risk of harm” in Article 13 (1)(b), of the Hague Convention) was “a very narrow exception provision is clear from the requirement that the risk must be serious and that it must relate to harm or an intolerable situation for the child”. The court also emphasised that the harm must arise in relation to the child, although harm to the child’s next-of-kin may also entail a risk of the child being harmed psychologically.
In its assessment of the facts, the court considered that the risk of the father harming the son physically was insufficiently substantiated. The court also pointed out that the father’s alleged acts of violence related to the mother, not the child.
The court then assessed the risk of the child suffering indirect psychological harm in the event of the father injuring the mother. The District Court had based its decision on the conclusion that the father had acted in a violent, threatening and offensive manner towards the mother, including, on some occasions, in the presence of the child. However, in its assessment of the required level of risk of harm, the court stated that “a certain risk of ‘psychological harm’ will […] exist.” but that this risk could not be characterised as serious, as required by section 12 (b)”.
The Court of Appeal stated that the parties had given highly divergent accounts of the facts but that it was unnecessary to decide which version was most likely, since it had concluded that the mother’s descriptions did not constitute circumstances presenting a serious risk of harm to the child in the event of return.
Finally, the court pointed out that the question of what would be the best future care alternative for the child was irrelevant to the question of whether the child should be returned and should be resolved by the authorities in the state of habitual residence.