BK v NK (Suspension of Return Order)

Under the 1980 Hague Convention, a parent’s actual right to veto removal of a child from the state of habitual residence is a right of custody. A merely potential right to apply to court is insufficient. The Article 13(b) defence requires clear and compelling evidence of a grave risk of harm or intolerability. Financial difficulty must generally reach destitution or homelessness, and disruption after return must be substantially more severe than the ordinary consequences of an unwelcome return. A return order may exceptionally be suspended to enable proceedings in the state of habitual residence, particularly where the left-behind parent has been deported and the child may promptly obtain permission to return.

The applicant father sought the summary return of the parties’ child to Poland after the respondent mother removed him to England. The parties accepted that the child had been habitually resident in Poland, was under 16, and had been removed without the father’s consent within one year of the application. The mother disputed that the father had rights of custody and relied on Article 13(b), alleging domestic violence, financial hardship and the disruption caused by returning to Poland when the father had been deported. The central issues were whether the father’s Polish-law veto over relocation amounted to rights of custody, whether the Article 13(b) defence was established, and whether any return order should be suspended.

1. Rights of custody. The court had to identify the rights created by Polish law and then determine whether they amounted to rights of custody under the autonomous law of the Convention. The expert’s legal conclusions on that ultimate Convention question were not binding.
2. The father had an actual right to veto the child’s removal from Poland. The mother could relocate only with his consent or, if consent was withheld, an order of the Polish court. That was a right of veto, not merely a potential right to seek an order. Applying Re D (A Child), the right amounted to rights of custody under Articles 3 and 5(a) of the Convention. Removal was therefore wrongful.
3. Article 13(b). The mother did not establish a grave risk of physical or psychological harm or intolerability. The father had been deported and could not presently contact the child in Poland. Protective measures were available. The evidence did not establish a risk from his associates. The alleged financial hardship did not approach destitution or homelessness.
4. The child had been in England for 14 months, but the evidence did not show a stable, secure and settled life whose disruption would create the necessary degree of intolerability. The father’s absence from Poland did not alter the Convention’s fundamental allocation of welfare decisions to the courts of the child’s habitual residence.
5. Suspension. Although Article 13(b) was not made out, the father’s deportation created exceptional circumstances. Returning the child to a country where the father was absent, with a real possibility that the Polish court might promptly permit an interim return to England, would cause significant disruption and uncertainty. The return order was therefore suspended for 10 weeks to allow the mother to apply on notice in Poland for interim permission to remove the child to England.

First-instance application under the Child Abduction and Custody Act 1985. The High Court ordered the child’s return to Poland but suspended operation of the order for 10 weeks.