GP (A Child)

When determining the grave-risk exception under Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction 1980, the court must examine concretely the circumstances the child would face on return. These include practical arrangements for accommodation, maintenance, education and care, particularly if the accompanying parent might be imprisoned. Comity, the policy favouring prompt return and condemnation of the abducting parent cannot substitute for that assessment.

The opposing parent bears the burden of establishing the exception on the balance of probabilities. If essential information is insufficient, an adjournment to obtain further evidence may be necessary despite the requirement for expedition. Where the child-objections gateway is satisfied, the court must also exercise its discretion by considering the relevant objections, welfare circumstances and Convention considerations.

GP, an eleven-year-old child, was habitually resident in Italy. Her Italian father and Latvian mother were separated, and an Italian court had made shared-care arrangements. The mother wrongfully removed GP to England in February 2016. She was already subject to a one-year Italian custodial sentence for an earlier removal within Italy, and her appeal against that conviction was subsequently dismissed.

The father brought proceedings in England for GP’s return within one year of the international abduction. The mother relied on the grave-risk exception and GP’s objections to returning. Evidence raised concerns about possible imprisonment of the mother, inadequate accommodation and financial support in Italy, and GP’s psychological vulnerability. Hayden J rejected the grave-risk defence and ordered return, notwithstanding his finding that the child-objections gateway was satisfied: [2017] EWHC 1480 (Fam).

The mother appealed against those two determinations. Permission to challenge the judge’s meeting with GP was refused and that challenge was not renewed. The central issue was whether the judge had adequately assessed the circumstances GP would actually face upon return, including the possibility of her mother’s imprisonment.

The appeal was allowed unanimously. Henderson LJ gave the leading judgment, with which Lindblom and King LJJ agreed. The return order was set aside and both Article 13 issues were remitted for rehearing before a different judge of the Family Division.

1. The Article 13(b) threshold was high, and the mother bore the burden of establishing the exception on the balance of probabilities. Nevertheless, the exceptions formed part of the Convention’s objects because Article 12 was expressly qualified by Article 13. The judge had correctly stated the law but had given excessive weight to comity, the policy favouring return and the mother’s misconduct. He had insufficiently examined the predicament GP would actually face (In re E (Children) [2011] UKSC 27, [2012] 1 AC 144 applied; paragraphs 25, 59–60).

2. A concrete assessment was required of what would happen immediately upon arrival and during the period before the Italian court reconsidered welfare arrangements. The judge needed conclusions about accommodation, maintenance, education and care, on the alternative assumptions that the mother would or would not be imprisoned. The possibility of commutation did not resolve the risk of initial custody. The father’s limited undertakings and resources left material practical questions unanswered. The circumstances differed materially from Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433, where evidence addressed the prospect of bail (paragraphs 32–36, 58, 61–62).

3. If the available information was insufficient, the judge should have adjourned for further evidence. Expedition was essential, but achieving a just outcome was more important. GP’s existing psychological harm required particular attention to the risk of further serious harm, especially through abrupt separation from her mother and placement with her father. Teaching the child lessons about punishment was inappropriate to that inquiry (paragraphs 63–64).

4. The Court of Appeal did not determine that Article 13(b) was established. The omitted inquiries could have affected the result, and the existing decision was unsafe. A rehearing was appropriate because the evidence required supplementation and the appellate court lacked the transcript of the CAFCASS officer’s oral evidence (paragraphs 65–66).

5. The child-objections gateway had been satisfied. The judge’s discretion therefore required consideration of the relevant objections, welfare matters and Convention policy. His failure to identify the factors informing that discretion left it potentially affected by the same deficiencies. That question also required fresh consideration. Directions were to be listed before a different High Court judge within seven days of the judgment’s delivery (paragraphs 6, 67–68).

• Court of Appeal (Civil Division): In GP (A Child) [2017] EWCA Civ 1677 , the mother’s appeal was allowed unanimously. The return order was set aside and both Article 13 issues were remitted for rehearing before a different judge of the Family Division.
• Court of Appeal permission stage: On 20 July 2017, Black LJ granted permission to challenge the Article 13(b) determination and the exercise of discretion on the child’s objections. She refused permission concerning the judicial meeting with the child and stayed removal pending the appeal.
• High Court, Family Division: Hayden J heard the father’s return application on 26 May 2017. By judgment and order dated 20 June 2017, [2017] EWHC 1480 (Fam) , he rejected the grave-risk defence and ordered return to Italy notwithstanding the child’s objections.