CA-2025-001951 - [2025] EWCA Civ 1426

Fecha: 12-Nov-2025

Protective measures under the Hague Convention

Protective measures under the Hague Convention

18.

The United Kingdom and the United States are of course parties to this international treaty. The preamble to the Convention records that the interests of children are of paramount importance in matters relating to their custody, and that the Convention is designed to protect children internationally from the harmful effects of their wrongful removal or retention. In a case where an intolerable situation would exist but for protective measures that could be taken in the home country, the returning court must be satisfied that the proposed protective measures will be sufficiently effective in the requesting state to address the risks.

19.

In Re E (Children) (International Abduction) [2011] UKSC 27; [2012] 1 AC 144; [2011] 2 W.L.R. 1326;[2011] 2 F.L.R. 758, Baroness Hale and Lord Wilson, delivering the judgment of the Supreme Court, stated:

[35] … [A]rt 13b is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home.

[36] … The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. …”

These words resonate in a number of ways in the present case.

20.

This well-established approach towards protective measures was fully considered in the judgment of this court in Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415; [2024] 1 WLR 2896; [2024] 1 FLR 1279. There, Cobb J, with whom Moylan and Lewis LJJ agreed, stated at [50]:

“Protective Measures need to be what they say they are, namely, protective. To be protective, they need to be effective.”

This accords with the Good Practice Guidance issued by the Permanent Bureau of the Hague Conference on Private International Law in October 2020, see paragraphs 43 et seq.