T v E (Refusal to Order Return)

In an application under the 1980 Hague Convention, the Art 13(b) defence may be established where returning a child with the respondent parent would significantly deteriorate that parent’s mental health and thereby place the child in an intolerable situation. The court may determine disputed allegations summarily where documentary evidence objectively verifies material parts of the alleged risk. A full fact-finding hearing is not invariably required. Protective measures must be assessed against the identified risk and may be inadequate where the act of return itself would trigger the deterioration. Once the grave risk is established and cannot be mitigated, the court should exercise its discretion not to order return.

The father applied for the summary return of his two-year-old daughter to Turkey. The mother accepted that the child had been habitually resident there and that the removal was wrongful under Art 3 of the Convention. She relied principally on Art 13(b), asserting that returning with the child would cause a grave deterioration in her mental health, with adverse consequences for the child. She also relied on acquiescence under Art 13(a).

The court heard documentary and expert psychiatric evidence. The central issues were whether the asserted risk was established, whether protective measures could address it, and whether the father had acquiesced in the child remaining in England.

1. Art 13(b). The court applied the principles summarised in Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 and Re S (A Child) (Abduction: Rights of Custody) [2012] 2 FLR 442. The risk must be grave, and the court must consider the situation that would exist if the child were returned forthwith, including available protective measures.
2. A full fact-finding hearing was unnecessary. The documentary evidence, particularly the parents’ WhatsApp communications and corroborating material, objectively verified significant verbal and physical domestic abuse. The court could therefore assess the Art 13(b) defence without resolving every disputed allegation.
3. The court accepted the expert evidence that the mother suffered from PTSD, that her firmly established belief that return would endanger her life was genuine, and that return would cause a significant deterioration in her mental health. That deterioration would adversely affect her care of the child, whose developmental and communication needs were particularly complex.
4. No protective measures could adequately address the risk. The very act of return would cause the serious deterioration identified by the expert, and the mother would then remain in an environment unlikely to support successful treatment. The child would consequently be placed in an intolerable situation.
5. The court observed, obiter, that it would have been difficult to find acquiescence under Art 13(a). The father’s communications did not provide a clear and unambiguous indication that he would not assert his right to summary return, particularly because the mother understood that proceedings might follow if she did not facilitate contact.
6. Although establishment of Art 13(b) technically confers a discretion, it was appropriate to exercise that discretion against return. The application for summary return was dismissed. The decision concerned jurisdiction for welfare determination and was not a final determination of the child’s welfare.