W v W

In child abduction proceedings, the Article 13(b) threshold is stringent. Domestic violence directed at a parent does not, by itself, establish a grave risk to the child. The relevant question is the likely effect on the child, having regard to the circumstances on return and available protective measures.

The child-objections exception is distinct from Article 13(b). The court must determine whether the child objects to return to the country, assess age and maturity, and evaluate the strength, reality and independence of the objection. No separate finding of grave risk or intolerability is required.

The father applied under the Child Abduction and Custody Act 1985 and the Hague Convention for the return of the parties’ daughter to South Africa after the mother removed her to England. The removal was accepted to be wrongful under Article 3.

The mother relied on Article 13(b), alleging a grave risk arising from the father’s abusive and controlling conduct, and on the child’s objections under Article 13. The central issues were whether either defence was established and, if not, what conditions should govern the child’s return.

1. Article 13(b). The court applied the high threshold identified in Re C (Abduction: Grave Risk of Psychological harm) 1999 1FLR 1145. The evidence must establish a grave risk of physical or psychological harm, or an intolerable situation, which is substantial and materially more severe than the disruption and anxiety ordinarily caused by return.
2. Domestic violence by a father towards a mother is not, without more, sufficient. The mother’s distress matters only insofar as it may affect the child. The court accepted that the alleged conduct was troubling, but found insufficient evidence that the child herself faced the necessary grave risk. The Article 13(b) defence therefore failed.
3. The judge expressed concern that the current approach might give insufficient weight to the psychological effects on a mother and child who had lived in traumatic circumstances. Nevertheless, the court considered itself bound by the existing authorities, including Re H (Abduction: Grave Risk) [2003] 2FLR 141.
4. Child’s objections. Following Re T (abduction: child’s objections to return) [2000] 2 FLR 192, the court considered whether the child objected to return to South Africa, her age and maturity, and the strength and basis of her views. The exception is separate from Article 13(b), so grave risk need not be proved. An objection to the country may, however, be inseparably linked with objection to living with the other parent.
5. The child was mature enough for her views to be considered, but her concerns were principally about her mother’s welfare and she could accept a return if they lived separately from the father. Her objections were not overriding. The court would therefore have exercised its discretion to order return.
6. Return was ordered subject to extensive protective measures, including South African orders for the mother’s interim care of the child, separate accommodation, restrictions on the father’s contact and conduct, psychiatric assessment, legal funding, maintenance, disclosure and undertakings concerning criminal or civil proceedings. No order was made as to costs.

First-instance decision. No earlier appellate decision concerning this application is stated.