C v S

Under Article 13B of the Hague Convention, the person opposing return bears the burden of proving, on the balance of probabilities, a grave risk of physical or psychological harm or an intolerable situation. The assessment must account for protective measures and the circumstances in which the child would return. An abducting parent cannot ordinarily rely on harm resulting from that parent’s refusal to return with the child. A child’s wishes and feelings do not amount to an objection unless they demonstrate sufficient strength, conviction and rationality. Even where the objection and maturity thresholds are met, the court retains a discretion whether to order return.

The father applied for the summary return to Australia of his 14-year-old son, who had been brought to England by the mother following the breakdown of her marriage. The mother initially advanced several defences, but pursued only Article 13B grave risk or intolerability and the child-objections exception.

The central issues were whether return with or without the mother would expose the child to a grave risk of psychological harm or an intolerable situation, whether the child objected to return and had sufficient maturity, and, if the objections exception were established, how the discretion should be exercised.

1. Article 13B. The mother bore the burden of establishing the exception on the balance of probabilities. The risk had to be grave, and the assessment had to take account of protective measures and the situation the child would face on return, applying Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27.
2. The court considered both possible situations. It found that the mother was likely to honour her assurances to accompany the child to Australia. Immigration, accommodation and financial difficulties did not establish an impossibility of return, homelessness or destitution. If the child returned alone, the likely emotional impact would not amount to grave psychological harm or intolerability, given the established and positive relationship with his father. The principle in C v C (Minor) (Abduction: Rights of Custody) [1989] 1 WLR 654 would have been relevant had the mother refused to return, but that was not the position found.
3. Child’s objections. The court applied the three-stage approach in Re M (Abduction: Child’s Objections) [2007] 2 FLR 72: whether the child objected, whether he had sufficient age and maturity for his views to be taken into account, and whether the discretion should be exercised to refuse return. The child’s expressed preference to remain in England lacked the strength, conviction and rationality required by Re K (Abduction: Case Management) [2010] EWCA Civ 1546, and therefore did not constitute an objection.
4. Had the child established an objection, he had sufficient age and maturity. However, the discretion would still have been exercised in favour of return. Relevant factors included the mother’s influence, the flagrant nature of the abduction, the Convention’s objectives, the Australian courts’ greater suitability to determine welfare issues, and the short period of time before the return application was initiated, applying the guidance in Re M (Abduction: Zimbabwe) [2007] UKHL 55.
5. The Article 13B and child-objections defences failed. An order was made for the child’s summary return to Australia.

First-instance decision. No prior appellate decision is stated in the judgment.