K v D

In an application under the Hague Convention 1980, consent to a child’s retention must be clear and unequivocal, though it need not be written. The burden rests on the person asserting consent, and the court must assess the practical realities of family life. A defence under Article 13(b) requires actual evidence, considered on the ordinary balance of probabilities, establishing a grave risk arising from the child’s return. The risk must be caused or materially increased by the return. Even where Article 13(b) is engaged, return may be ordered where adequate protective arrangements exist under Article 11.4 of the Brussels II Revised Regulation.

The applicant, the child’s maternal grandmother, sought the child’s return to the Czech Republic. The child had been habitually resident there and had been brought voluntarily to England by the grandmother. The respondent mother opposed return, alleging that the grandmother had consented to the child remaining in England and relying on Article 13(b) of the Hague Convention 1980, based on risks connected with her trafficking history and criminal proceedings against members of a criminal network.

The central issues were whether there had been consent to retention and whether return would expose the child to a grave risk of physical or psychological harm or place her in an intolerable situation.

1. Consent. The Article 13(a) defence failed. Consent to retention must be clear and unequivocal, although it need not be written. The burden of proof rests on the person asserting consent, and the court must take a practical view of the realities of family life. The evidence showed that the grandmother had come to assess whether the family could live together safely, rather than agreeing that the child would remain permanently in England. Her conduct after the relationship broke down was inconsistent with consent to retention.
2. Grave risk. The Article 13(b) defence also failed. Applying Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758, the question was assessed on the ordinary balance of probabilities and required a grave risk, rather than merely a real risk. The evidence established genuine concerns connected with organised criminality, but did not establish a solid threat to the child. In any event, the alleged risk was not shown to arise from, or to be increased by, return to the Czech Republic. Potential risks existed both in England and in the Czech Republic.
3. Protective arrangements and discretion. Even if Article 13(b) had been engaged, the court would have ordered return. Article 11.4 of the Brussels II Revised Regulation required consideration of adequate arrangements to secure the child’s protection after return. Such arrangements could be made. The child was Czech, most of her family were in the Czech Republic, and the Czech court already had proceedings concerning her care. The decision concerned jurisdiction, not the child’s welfare.
4. The child was ordered to be returned to the Czech Republic by 6 pm on 13 October 2014. Notice of the decision was to be given urgently, with Czech translations, to relevant police and child-protection authorities.