In the matter of S (A Child)

The article 13(b) inquiry in an international child abduction case concerns what will happen if the child returns. A parent’s anxieties may create a grave risk of an intolerable situation for the child through their effect on that parent’s mental health. The anxieties need not be objectively reasonable, although their objective basis remains relevant evidence.

The court must assess whether available protective measures will remove the risk. Once grave risk is established, it will ordinarily be illegitimate to order return. The first-instance judge’s evaluation must stand unless it was unavailable on the law or evidence. Neither the Hague Convention nor article 8 of the European Convention requires an in-depth examination of the entire family situation.

The mother wrongfully removed her young son, W, from Australia, where he was habitually resident, and brought him to England without the father’s consent or judicial permission. The father sought W’s summary return under the Convention on the Civil Aspects of International Child Abduction.

The mother relied solely on article 13(b). She alleged domestic abuse, drug and alcohol misuse and financial instability. Medical evidence indicated that a return would create a serious risk to her psychological health and could impair her parenting of W.

Charles J dismissed the return application in [2011] EWHC 2624 (Fam). The Court of Appeal allowed the father’s appeal and ordered W’s return in [2011] EWCA Civ 1385. The central issues were whether the mother’s anxieties had to be objectively reasonable, whether the proposed protective measures removed the risk, and whether the Court of Appeal was entitled to replace the judge’s assessment with its own.

1. Appeal allowed. Lord Wilson, delivering the judgment of the court, held that Charles J’s decision was open to him on the evidence. The Court of Appeal had therefore been wrong to substitute its contrary assessment. The order dismissing the father’s return application was restored.
2. The critical question under article 13(b) of the Convention on the Civil Aspects of International Child Abduction was what would happen if the child returned. If the mother’s anxieties would so affect her mental health that the child would face an intolerable situation, the child should not be returned. It did not matter whether those anxieties were reasonable or unreasonable. Their objective foundation remained relevant when assessing how the mother would probably react. This applied the approach in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27.
3. The offered protective measures required central consideration, but their existence did not determine the case. The judge was entitled to find that they did not remove the grave risk arising from the established history and the mother’s psychological vulnerability. Once grave risk was found, article 13(b) technically conferred a discretion, but it was not realistically possible to identify a legitimate case for ordering return despite that risk.
4. The assessment of the required level of risk belonged primarily to the first-instance judge. An appellate court could intervene only if that assessment was unavailable by reference to the law or the evidence. The absence of oral evidence did not remove that primacy. The appellate restraint stated in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40 applied.
5. In a postscript, the court reaffirmed that neither the Hague Convention nor article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms requires an in-depth examination of the entire family situation during a summary return application. The contrary suggested approach in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122, reiterated in X v Latvia, was inappropriate for Hague Convention proceedings.

• United Kingdom Supreme Court: Allowed the mother’s appeal from [2011] EWCA Civ 1385 and restored Charles J’s order dismissing the return application.
• Court of Appeal: In [2011] EWCA Civ 1385, set aside the High Court’s order and directed the mother forthwith to return W to Australia.
• High Court, Family Division: In [2011] EWHC 2624 (Fam), Charles J dismissed the father’s application for W’s summary return to Australia.