C v B

In Hague Convention return proceedings, ordinary welfare considerations do not determine an Article 13(b) defence. The court must require clear and compelling evidence of a grave risk that return will expose the children to physical or psychological harm or place them in an intolerable situation. A risk that the primary carer may suffer depression on return is insufficient unless the evidence establishes a grave risk that the deterioration will remove or seriously impair the carer’s ability to provide proper parental care.

The return court must not use Article 13(b) as a short cut to decide welfare questions entrusted to the court of habitual residence. Where the threshold is not met, return should be ordered, subject to protective undertakings where necessary.

The father sought the return to Australia of two children whom the mother had brought to England with consent for a holiday and retained there. The retention was wrongful under Article 3, and the father was entitled to return under Article 12 unless the mother established an Article 13 defence.

The mother relied on her child’s objection and on Article 13(b), arguing that return would probably cause a serious deterioration in her mental health and thereby place the children in an intolerable situation. She also relied on changed circumstances since an Australian Family Court had refused her earlier relocation application. The central issues were whether either defence was established and, if not, what undertakings should accompany the return order.

1. Return ordered. The retention was wrongful and the mother failed to establish either an Article 13(b) defence or a sufficient objection by A. The children were to be returned to Australia after the father provided and acted upon the specified undertakings.
2. A had attained an age and degree of maturity at which his views could be taken into account. His preference for England, anger towards his father and wish to remain with his mother did not amount to an objection sufficient to engage the court’s discretion under Article 13.
3. The Article 13(b) threshold is substantially higher than ordinary welfare considerations. The court required clear and compelling evidence of a grave risk of harm or intolerability, measured as substantial and significantly more serious than the ordinary disruption, uncertainty and anxiety of return. The same stringent standard applies where the alleged intolerable situation arises from the primary carer’s psychological deterioration.
4. The evidence showed a real possibility that the mother would become depressed in Australia, but it did not establish a grave risk that she would lose, or be seriously unable to exercise, her parenting ability. The strong welfare case for remaining in England therefore could not justify refusing return. It was for the Australian court to reconsider ordinary welfare and relocation issues.
5. The court declined to treat the case as comparable to Re G (Abduction: psychological harm) [1995] 1 FLR 64, where the evidence indicated that the mother’s return would probably lead to psychosis and inability to care for the children. The high threshold stated in Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 was applied. The observations of Hale LJ in TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515 explained why the jurisdiction could produce a harsh result but did not displace the threshold.
6. The father undertook to pay arrears and continuing child support, preserve the mother’s care pending the first inter partes hearing in Australia, refrain from proceedings arising from the wrongful retention, and comply with protective arrangements concerning contact, accommodation and harassment. Return was postponed until after Christmas and was to occur speedily thereafter.