TG (A Child : location order and disclosure orders)

In an Article 13(b) child-abduction application, the removing parent bears the burden of proving the defence on the balance of probabilities. The court must assess the likely situation on return, including whether the parent’s anxieties would affect their mental health so seriously that the resulting situation would be intolerable for the child.

Intolerability is assessed by reference to the particular child and circumstances. Protective undertakings and arrangements must be evaluated realistically. A court order cannot, by itself, prevent a perpetrator from breaching it. Adequate arrangements must therefore genuinely secure the child’s protection after return.

The applicant father sought location, disclosure and return orders after the respondent mother took their young child from Ireland to England. The child was located and the return application proceeded to a final hearing. The mother abandoned an Article 12 settlement argument and did not pursue the contention that the father was not exercising rights of custody.

The remaining issue was whether the mother had established the Article 13(b) defence under the Hague Convention, and whether Article 11 of the Council Regulation required return despite that defence. The court considered allegations of domestic abuse, threats, abusive messages, the mother’s lack of accommodation in Ireland and the proposed protective arrangements.

1. Article 13(b). The mother bore the burden of proving the defence on the balance of probabilities. The court was not conducting a fact-finding hearing and made no findings on the disputed allegations. It could nevertheless assess the documentary and witness evidence relevant to the risk and the mother’s likely condition on return.
2. Anxiety and intolerability. Applying Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, the critical question was what would happen if the child were returned with the mother. The reasonableness of her anxieties was immaterial, although the objective basis for them was relevant. The evidence of longstanding domestic violence, drunken outbursts and highly abusive threats created a grave risk that the mother would suffer such anxiety that its effect on her mental health would make the situation intolerable for the child.
3. The court applied the guidance in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 that the level of risk required depends on the seriousness of the threatened harm. It also applied the approach in Re D (Abduction: Rights of Custody) [2007] 1 FLR: intolerability concerns the child’s return to the requesting state, assessed in the particular circumstances.
4. Protective arrangements. Article 13 of the Council Regulation qualified the effect of Article 13(b) where adequate arrangements had been made to secure the child’s protection after return. The father’s proposed undertakings, payment of travel expenses and maintenance did not provide adequate protection. His apparent breach of an existing Irish non-molestation order demonstrated that an order could not itself prevent further conduct.
5. The Article 13(b) defence was made out, and the Article 11 compulsion did not require return. The application for return was refused.

Not an appeal. The judgment records that location and disclosure orders were made on 6 January 2017 and that the return application was listed for final hearing before this court.