X v Y & Ors

In an application for the summary return of children under Article 13 of the Hague Convention, the court must assess the alleged risk before deciding whether protective measures can adequately address it. Where a grave risk of harm or an intolerable situation is established, the court has no discretion to order return under Article 13(b). A child’s objection is a separate exception. The court must decide whether the child objects, whether the child has sufficient age and maturity for the views to be taken into account, and, if so, whether to exercise the resulting discretion. Relevant considerations include the strength and authenticity of the objection, parental influence, welfare factors and the Convention’s policy. A mature child’s genuine objection may prevail despite a serious wrongful removal.

The mother applied under the Child Abduction and Custody Act 1985 and the Hague Convention for the summary return to Australia of three children wrongfully removed by their father. The father relied on Article 13(b), alleging that the children’s return would expose them to grave risk because of threats arising from his former undercover police work. He also relied on the child-objections exception, principally in relation to the eldest child. The police force employing the father and the children, represented by their guardian, were joined as respondents. The central issues were whether either Article 13 defence was established and, if so, whether the children should nevertheless be returned.

1. Article 13(b). The court rejected the submission that risk should be left entirely to the Australian authorities. It was necessary to assess the type and extent of the alleged risk before determining whether effective protective measures could be put in place. In the absence of immediate protective arrangements, the court had to do its best to resolve the disputed risk issues.
2. The evidence established a grave risk arising from the father’s undercover work, the possible compromise of the family’s previous relocation and the absence of an agreed and implemented safety plan. A return to the same part of Australia would place the children in an intolerable situation because the risk could not safely or effectively be understood or managed. The Article 13(b) defence was therefore established.
3. Once Article 13(b) was established, the court had no discretion to order return. The father’s irresponsible abduction and the existence of risks in England did not justify returning the children to face an equivalent grave risk.
4. Child’s objections. The eldest child had a clear and unequivocal objection to returning to Australia and sufficient age and maturity for the court to take account of the child’s views. The younger children had not established objections of the required kind.
5. In exercising the discretion arising from the eldest child’s objection, the court considered the strength and authenticity of the objection, parental influence, welfare considerations, settlement in England, the likely delay before a safe return could be arranged and the policy of the Hague Convention. The child’s genuine and independent objection, supported by welfare considerations, prevailed. The siblings were not to be separated.
6. The mother’s application for summary return was dismissed. Future litigation concerning the children’s residence and welfare would take place before the courts of England and Wales.