H v K (Return Order)

Under the 1980 Hague Convention, an alleged grave risk must be assessed prospectively and in light of available protective measures. The court may assume the allegations at their highest without conducting a fact-finding hearing. The defence fails where adequate measures prevent the asserted risk from becoming manifest.

A mature child’s genuine objection opens a discretion rather than determining the outcome. Its weight may be reduced by parental influence and outweighed by welfare, comity and Convention considerations. A return order restores the child to the jurisdiction of habitual residence for welfare decisions; it does not determine final custody.

The father applied under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention for the summary return of two children to Hawaii. The mother had retained them outside the United States in breach of an order permitting a temporary visit to England. She accepted that the children were habitually resident in the United States and that their retention was wrongful.

The mother relied on grave risk of harm or an intolerable situation under article 13(b), including psychological harm, possible arrest and prosecution, insufficient accommodation and the father’s custody order. She also relied on both children’s objections. The issues were whether protective measures defeated the article 13(b) defence and, if the objections defence was established, how the resulting discretion should be exercised.

1. Summary return ordered. The mother’s retention of the children was a premeditated and flagrant abduction intended to frustrate ongoing Hawaiian welfare proceedings and assessments. The children were to return to Hawaii forthwith, notwithstanding their objections.

2. The article 13(b) defence failed. Following Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, the court proceeded on the assumption that the mother’s case at its highest disclosed the requisite risk. The protective measures offered by the father and available in Hawaii were sufficient to prevent that risk becoming manifest. They included accommodation, funded flights, non-violence and non-contact undertakings, preservation of the children in the mother’s care pending the Hawaiian hearing, psychological assessment and therapeutic intervention.

3. The possibility that the mother might be arrested or prosecuted did not ordinarily establish article 13(b). The father’s undertaking not to support prosecution, qualified so that he need not breach public policy, law, a court order or another legal duty, afforded the maximum protection reasonably available. A left-behind parent should not be required to assume legal risk created by an abduction or promise to conflict with the law of the home state.

4. The court could rely on the father’s undertakings without first obtaining stipulated Hawaiian orders. His bona fides, child-focused conduct, legal experience and compliance history supported reliance. The undertakings would initially operate only briefly before the inter partes hearing in Hawaii, where undertakings made in England could be relied upon.

5. Each child objected to return and had sufficient age and maturity, so the article 13 discretion arose. Their objections were nevertheless not determinative. Evidence of maternal influence reduced their weight. Return offered substantial welfare advantages by permitting established proceedings and professional assessments to continue, protecting the children’s relationship with their father and respecting comity and the objectives of the Convention.

6. The requirement of return “forthwith” justified departure within three days so that the family could attend the imminent Hawaiian hearing. Precautions could ensure boarding in England, but the court lacked jurisdiction to require the mother to submit to law-enforcement supervision in the United States. The mother and children were permitted both their British and American passports, which were to be surrendered promptly in Hawaii.

• High Court (Family Division): The father commenced proceedings on 8 December 2016. A without-notice location order was made and the mother and children were found on 22 December 2016. The children were joined as parties on 9 February 2017. The court ordered their summary return to Hawaii.
• Hawaii Family Court: Existing divorce and custody proceedings included a joint-custody and non-removal order. After the wrongful retention, the court ordered the children’s return, granted the father full custody and suspended the mother’s visitation. Those proceedings remained pending.