S v B & Y (A Minor)

Under Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction 1980, the court must focus on whether the child who is the subject of the application faces a grave risk of psychological harm or an intolerable situation on return. The abducting parent’s own conduct does not automatically exclude the defence. The court must still consider whether the consequences of return may seriously impair that parent’s ability to care for the child.

The threshold remains high. Clear, compelling and cogent evidence is required. The welfare and human-rights interests of a sibling who is not the subject of the application may be considered only insofar as they bear on the subject child’s risk or the court’s discretion. The Convention’s prompt-return purpose remains controlling.

The father applied for the return of his 20-month-old daughter, X, to New Zealand under the Hague Convention. The mother had retained X in England after an agreed holiday and relied on Article 13(b).

She argued that returning X would create an intolerable situation because her older son, Y, would not willingly return to New Zealand, she might suffer renewed depression, suitable accommodation was unavailable, and X might lose her close relationship with Y. Y was joined as a defendant so that his position could be presented.

The central issues were whether the Article 13(b) exception was established, how Y’s position and ECHR rights should be treated, and whether separate representation for Y was necessary.

1. The application was governed by Articles 3, 5 and 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980. Wrongful retention was established and no Article 12 exception applied. The question was whether the mother had proved the Article 13(b) exception.

2. The court accepted that harm to X could result indirectly from a serious deterioration in the mother’s mental health if that deterioration impaired her ability to provide care. The abducting parent’s dilemma may therefore be relevant even where it arose after the wrongful retention. The principle that a parent cannot rely on consequences of her own conduct must not be applied so as to exclude the statutory defence.

3. Nevertheless, Article 13(b) imposes a high threshold. The evidence concerning the mother’s previous depression, the medical reports, accommodation, and Y’s reluctance to return did not establish a grave risk to X. The accommodation difficulties were capable of solution. The evidence did not show that the mother would become unable to care for X or that X would face an intolerable situation.

4. Y’s position was relevant only insofar as it affected the risk of harm to X or the exercise of discretion. Y was not the subject of the Convention application, and his objections could not themselves establish an Article 13(b) defence for X.

5. The court considered Y’s Article 8 rights under the ECHR. Any interference with his family life was justified by the protection of X and the father’s corresponding rights, to which the Convention accords precedence. Article 6 was not engaged because the proceedings did not determine Y’s civil rights and obligations.

6. There was no sufficient basis for refusing return. Separate representation for Y had been unnecessary in the circumstances. In non-European cases, such representation for a sibling who is not the subject of the application will be rare and ordinarily requires exceptional circumstances together with an arguable Article 13 case.

7. An order was made requiring the mother to return X to New Zealand. The court reserved the detailed terms of the order.