GP (Wrongful Removal)

In an application under the 1980 Hague Convention, the Article 13(b) exception requires the respondent to establish a grave risk of harm or an intolerable situation on the child’s return. The assessment is prospective and must take account of protective measures and the arrangements available in the requested return state. Financial hardship, uncertainty about accommodation and the possible imprisonment of the abducting parent will not necessarily meet that threshold. The child-objections exception has a low gateway threshold, followed by a discretionary evaluation of the child’s objections, their authenticity, welfare considerations and the Convention’s objectives. A child should ordinarily be heard through an independent professional, and a judicial meeting should primarily allow the child to communicate rather than provide evidence. The application was resolved by ordering return, deferred until the end of the school year.

The father applied under the Child Abduction and Custody Act 1985 for the return of his 11-year-old daughter, GP, to Italy. The mother had removed GP from Italy to England in February 2016, accepting that the removal breached the father’s rights of custody and that GP had been habitually resident in Italy.

The mother relied on Article 13(b) of the 1980 Hague Convention, alleging a grave risk of harm or an intolerable situation, and on GP’s objections to return. The central issues were whether either exception was established, whether adequate protective arrangements existed on return, and how much weight should be given to GP’s views.

1. Article 13(b). The mother failed to establish a grave risk that GP’s return would expose her to physical or psychological harm or place her in an intolerable situation. The burden was on the person opposing return, proof was on the balance of probabilities, and the assessment was prospective. The court had to consider protective measures and the circumstances GP would face on return.
2. “Intolerable” meant a situation which this particular child, in these particular circumstances, should not be expected to tolerate. The source of risk was irrelevant, and protection might need to continue beyond the immediate return. The mother’s financial difficulties, limited maintenance, uncertain accommodation and possible imprisonment did not meet that threshold. The Italian courts were better placed to address GP’s welfare, and adequate arrangements could be made under Article 11(4) of Brussels II Revised.
3. Child’s objections. The gateway required proof that GP objected to return and had attained an age and degree of maturity at which it was appropriate to take account of her views. If established, the court retained a discretion. GP’s objections were sincere but substantially influenced by her mother. They were therefore not wholly authentic, and the Convention’s objectives and GP’s relationship with her father and paternal family outweighed them.
4. Judicial meeting. The court applied the guidance concerning children’s participation in Hague Convention proceedings. GP had already been independently assessed by CAFCASS. The judge’s meeting with her was intended to involve her in the process, not to obtain evidence or test her account.
5. The return order was made but deferred until the end of GP’s school year, to reduce disruption. The father’s lawyers were directed to provide the judgment to the Italian court before its listed hearing.