AT v SS

The source of a risk relied upon under article 13(b) of the Hague Convention is irrelevant once grave risk or intolerability is established. Its source may nevertheless be examined when deciding whether that threshold is met. A parent's deliberate refusal to accompany a child is therefore relevant, but cannot automatically exclude the defence.

Separation from a primary carer and temporary foster care may satisfy article 13(b), depending on the facts. Ordinarily, however, the requested court should assume that the authorities of the requesting state can protect the child. Where adequate measures will address the resulting distress, separation and temporary public care do not without more establish grave harm or an intolerable situation.

The father applied for the summary return of his five-year-old son to the Netherlands under the Hague Convention on the Civil Aspects of International Child Abduction and Council Regulation (EC) No 2201/2003. The parties agreed that the child had been habitually resident in the Netherlands and that the mother had wrongfully removed him in breach of the father's custody rights.

The mother opposed return under article 13(b). She stated that she would not accompany the child. The Dutch authorities indicated that, if she maintained that position, they would assess kinship and foster placements and would not initially place the child with his father. The central issue was whether separation from the mother and temporary placement in Dutch public care would expose the child to grave physical or psychological harm or otherwise place him in an intolerable situation.

1. The application was granted and the child's return to the Netherlands was ordered. The mother had not established the defence under article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction. A short delay was permitted so that the Dutch authorities could identify an interim placement and arrange the child's reception and transport. A penal notice was attached to the return order.

2. Article 13(b) is restricted by its own terms and requires no additional gloss. The respondent bears the burden on the balance of probabilities. The risk must be grave, not merely real. Intolerability means a situation which the particular child, in the particular circumstances, should not be expected to tolerate. The inquiry is prospective and must account for protective measures available in the requesting state: Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 applied.

3. Once grave risk or intolerability is established, its source is irrelevant from the child's perspective. The source may nevertheless be examined when determining whether the asserted consequences will reach the article 13(b) threshold. The mother's conscious refusal to return was therefore relevant to assessing the situation the child would face. It did not automatically prevent the defence from succeeding. The primary focus remained the risk or intolerability to the child, evaluated alongside available protective measures.

4. Separation from a primary carer can found an article 13(b) defence, but the result is fact-sensitive. Comity ordinarily requires the court to assume that the requesting state's administrative, judicial and social services are as capable of protecting the child as those of the requested state. Temporary public care pending substantive welfare proceedings will therefore be unlikely, by itself, to establish the defence where adequate protective procedures exist.

5. The evidence demonstrated that the Dutch authorities could protect the child in foster care and address distress caused by temporary separation. They had previously managed a successful foster placement and planned an assessment before return. The likely distress and emotional upset did not reach the grave or intolerable threshold. The historic domestic-abuse allegations also fell well short of that threshold, even taken at their highest.

6. The court questioned whether it had power to compel the mother personally to accompany the child. Re Jones (No 2) [2013] EWHC 2730 (Fam) concerned an order designed to secure the children's return and did not establish such a power. No order compelling the mother's travel was made.

This was a first-instance application under the Child Abduction and Custody Act 1985. The application was made on 26 February 2015 and issued on 9 March 2015. Interlocutory orders facilitated the location of the mother and child. The final hearing was adjourned on 16 July 2015 pending information from the Dutch authorities and resumed on 11 September 2015.