CC, Re (A Child: Article 13(b), Hague Convention 1908)

MR DEXTER DIAS QC (Sitting as a Deputy Judge of the High Court pursuant to Section 9(4), Senior Courts Act 1981) (In Private) ____________________

MS I. RAMSAHOYE (instructed by Dawson Cornwell) appeared on behalf of the Applicant. MS K. SLATER (instructed by Duncan Lewis) appeared on behalf of the Respondent for judgment. MR M. JARMAN previously conducted the case on behalf of the Respondent. Hearing dates: 7 and 8 February 2022 ____________________

By virtue of Art 12, the Hague Convention 1980 operates to return the child promptly for the home court to resolve any relevant disputes. But there are exceptions. That is the question now. The Art 13(b) exemption is therefore the exclusive matter for the court to determine in this case. It is commonly referred to as a "defence" to return. I use the terms interchangeably. They mean the same thing. [2] The person who relies on an exemption must prove it to the ordinary civil standard.

(1) There is no need for Art 13(b) to be narrowly construed. [6] By its very terms, it is of restricted application. The words of Art 13 are quite plain and need no further elaboration or gloss;

(2) The burden lies on the person or institution or other body opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence, the court will be mindful of the limitations involved in the summary nature of the Convention process;