DM v KM

Under Article 13(b) of the 1980 Hague Convention, the court must assess the particular situation facing the particular child on return. A grave risk of psychological or emotional harm, or an intolerable situation, may arise from exposure to serious domestic abuse, including abuse of a parent. The court must then assess whether effective, concrete protective measures can be secured for the immediate and longer-term future. Vague assurances, uncertain accommodation and unimplemented undertakings may be insufficient. The summary nature of Hague Convention proceedings does not prevent refusal of return where the evidence establishes the Article 13(b) exception.

The father applied through the Central Authority for the summary return of two children from England to New Jersey, USA, under the 1980 Hague Convention. The children had been brought to England by their mother for a holiday and were not returned on the due date.

The mother initially relied on Article 13(a) and Article 13(b), but pursued only Article 13(b) at the hearing. She alleged serious domestic abuse, including violence in the children’s presence. The central issues were whether return would expose the children to a grave risk of physical or psychological harm or place them in an intolerable situation, and whether adequate protective measures could be put in place in the USA.

1. Application refused. The court declined to order the children’s summary return to the USA under Article 13(b) of the 1980 Hague Convention.
2. The burden lay on the mother as the person opposing return, and the ordinary balance of probabilities applied, subject to the limitations of the summary process. It was ordinarily inappropriate to resolve disputed allegations through oral evidence and cross-examination. The court applied the principles stated in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27.
3. The Article 13(b) inquiry required a two-stage assessment: first, whether the alleged circumstances, taken at their highest where appropriate, established a grave risk of harm or an intolerable situation; and secondly, whether effective protective measures could adequately address that risk. The Article 13(b) threshold was strict, and refusal of return remained exceptional. The court considered Re S (A Child) (Abduction: Rights of Custody) [2012] 2 FLR 442 and Re M (Abduction: Child’s Objections) [2007] 2 FLR 72 in that context.
4. Serious domestic abuse could expose children to psychological or emotional harm even where direct physical harm to them was not established. The evidence, including the Cafcass report and admissions concerning police involvement, psychiatric assessment and the children’s exposure to violence, showed a grave risk of emotional harm and an intolerable situation. The risk was increased by the father’s PTSD, instability and the children’s emotional response to the abuse.
5. The proposed safeguards were inadequate. There were no effective protective orders in place, no certainty that undertakings would be enforced promptly, insecure accommodation, and significant financial vulnerability for the mother and children. Police intervention was not itself a protective measure. The assurances offered were vague and ephemeral and did not protect the children for the period required.