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International Family Law

The leading authority on international family law

30 OCT 2012

England & Wales - Article 13(b) Harm Defence – The Latest English and Welsh Jurisprudence


Jacqueline Renton

The Supreme Court of England and Wales has set down helpful guidance regarding the jurisprudence to be applied when considering an article 13(b) harm defence in two recent cases - Re E (Children) (FC) [2011] UKSC 27, and nine months later - In the matter of S (A Child) [2012] UKSC 10.

In Re E [2011], the court ordered the return of two children (7 and 4) to Norway, thus upholding the decision of the court at first instance (Mrs Justice Pauffley) and the Court of Appeal. The Supreme Court did not lower the threshold inherent with an article 13(b) harm defence and made clear that no additional ‘gloss' should be imported into a court's consideration of an article 13(b) harm defence. The words under article 13(b) are plain and should not be narrowly construed. Further, the application of article 13(b) by the English courts to date is compliant with the UN Convention on the Rights of the Child and the jurisprudence of the European Court of Human Rights.

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