SK v BK

Where a child has been wrongfully removed, the court must order return under the applicable international abduction regime unless a recognised defence is established. The burden of proving an Article 13(b) defence rests on the person opposing return, on the balance of probabilities. A grave-risk allegation must be assessed against the evidence, including findings and protective arrangements available in the state of habitual residence. A parent cannot rely on settlement in the requested state where that settlement results from the abduction.

The father applied for the summary return of his son from England to Poland under the Child Abduction and Custody Act 1985 and Article 11 of Council Regulation EC 2001/2003. The mother accepted that she had removed the child without the father’s consent and in breach of his custody rights.

She opposed return solely on the basis of Article 13(b), alleging serious physical and psychological abuse by the father. The court considered detailed decisions and welfare evidence from Poland, the mother’s evidence, the father’s proposed protective undertakings, and her reliance on Articles 6 and 8. The central issue was whether the Article 13(b) defence had been established.

1. Return ordered. The mother had wrongfully removed the child from Poland in breach of the father’s custody rights. The court was therefore mandated by the Child Abduction and Custody Act 1985 and Council Regulation EC 2001/2003 to order return unless a recognised defence was made out.
2. The burden of proving the Article 13(b) defence rested on the mother, on the balance of probabilities. Her allegations of violence, torture and abuse were not established. The court considered it highly unlikely that such allegations would have been entirely absent from the carefully reasoned Polish decisions if they had been advanced before the Polish courts.
3. The Polish court findings, including the father’s previous care of the child and the welfare evidence from the guardian and nursery tutor, materially undermined the alleged grave risk. The mother’s conduct in allowing the father to take the child out for two consecutive days was also inconsistent with her case.
4. The mother’s reliance on Article 8 could not displace the father’s and child’s rights in circumstances where the child had been abducted. Her Article 6 right to a fair trial had been respected through interpretation, assistance from a McKenzie friend, and sufficient opportunity to present evidence.
5. Settlement in England could not provide a successful defence because it resulted from the mother’s own abduction of the child. In any event, if an Article 13(b) defence had been established, the court considered that adequate safeguards could have been put in place in Poland. The father’s undertakings concerning travel, non-violence, residence and contact were accepted.
6. The child was ordered to return to Poland, with the father paying the child’s flight and the mother paying her own. The father also undertook to pay the taxi fare from Gdansk airport.