KS v MK

In an exceptionally unusual Hague Convention case, the court recognised that the effect of a child’s return on the abducting parent may be relevant where the parent’s mental state could create an intolerable situation for the child. A risk that the parent might seriously harm herself could have grave and potentially lifelong consequences for the child. The court did not determine the Article 13 defences because the father withdrew his return application. The child therefore remained living with her mother in England, with arrangements made for continuing Skype contact.

The father applied under the Hague Convention for the summary return of his daughter to Spain. The child had travelled from Spain to Poland with his consent but had not returned, and had subsequently moved with her mother to England.

The mother raised the Article 13(a) and 13(b) defences. Evidence concerned the child’s objections, possible psychological harm to the child, and the mother’s serious deterioration in mental health, including a suicide attempt. Before the final hearing, the father withdrew the application. The central issue was therefore not adjudicated.

1. Disposition. The father’s application for the child’s return to Spain under the Hague Convention was withdrawn. The court expressly stated that it had not adjudicated upon anything of substance. The child remained living with her mother in England.
2. Potential relevance of parental mental health. If proceedings or an enforced return were likely to induce the mother to kill herself, the effect on the child could be devastating, both immediately and throughout her life. The court would have had to consider that evidence carefully in determining whether return would expose the child to a grave risk of psychological harm or place her in an intolerable situation under Article 13(b).
3. The judge referred to Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, in which the Supreme Court stated that a child should not be returned if the mother’s anxieties on return would create an intolerable situation for the child.
4. The existing interim order for twice-weekly Skype contact was continued in substance through a fresh, freestanding application under the Children Act 1989. The mother was given permission to apply to vary the precise times or days.