E (A Child), Re

Under Article 13(b) of the 1980 Hague Abduction Convention, the intolerability exception to the return of a wrongfully removed child sets a very high threshold. The inquiry is not a general welfare assessment. Ordinary difficulties, the parent’s wishes, or short-term financial and practical concerns do not establish the exception where appropriate undertakings are available and the courts of the child’s habitual-residence country are seised of interim matters. The court should respect the Convention’s overriding objective of securing the prompt return of children, subject only to the narrowly defined exceptions. A challenge that merely reopens practical arrangements already negotiated below does not justify permission to appeal.

The father applied under the Hague Child Abduction Convention for the return of his daughter to Spain after the mother removed her from Tenerife in December 2008. The mother conceded that the child was habitually resident in Spain and that the removal was wrongful. She resisted return under Article 13(b), arguing that return would place her and the child in an intolerable situation.

On 3 September 2009, Mrs Justice Hogg rejected that defence. She treated the proposed undertakings as sufficient to ease the return until the Spanish court seised of the dispute could address interim matters, and ordered return within 21 days. The mother applied to the Court of Appeal for permission to appeal, with the appeal to follow if permission were granted. The central issue was whether the judge had applied the correct Article 13(b) test.

1. Application refused. The Court of Appeal dismissed the application for permission to appeal. Thorpe LJ gave the principal judgment; Thomas LJ agreed, and Coleridge J also refused permission.
2. The judge below had correctly recognised that Article 13(b) imposed a very high threshold. The defence required proof that the child would be placed in an intolerable situation on return. It was not a welfare test. The fact that return might be uncomfortable for the mother, contrary to her wishes, or practically difficult did not satisfy the exception.
3. The judge was entitled to take into account the father’s detailed undertakings addressing the practical concerns relied on by the mother. Those arrangements were intended to cover the short term until the Spanish court already seised of the matter could rule on interim issues. The mother’s challenge to the sufficiency of the monthly sum and other arrangements sought only to reopen matters negotiated between experienced counsel. That did not disclose an arguable ground of appeal.
4. The child’s having spent substantial periods in England, and the possibility that she might regard Spain as her home country, did not convert the Article 13(b) inquiry into a welfare assessment. Nor was the judge’s assumption concerning the availability of benefits in Spain directly material in light of the undertakings.
5. Coleridge J described the case as a paradigm example of the Convention regime. In the circumstances, the court had no option but to order the child’s immediate return. The Court of Appeal had no responsibility to investigate media reports that the father might not enforce the order; any necessary variation could be sought by application to the parties.

1. Court of Appeal (Civil Division): permission to appeal refused on 7 October 2009; the application was described as hopeless and did not merit progression into an appeal.
2. Principal Registry, Family Division (Mrs Justice Hogg): judgment given on 3 September 2009. The Article 13(b) defence was rejected and return to Spain was ordered within 21 days.