C (Children) (Abduction: Article 13 (B))

Under Article 13(b) of the Hague Child Abduction Convention 1980, the court must assess the situation which the child will face on an immediate return, rather than treat past allegations as determinative. It must evaluate the evidence within the limits of the summary process and decide whether the alleged future risk is grave.

Where protective measures are relevant, the court must assess their likely effectiveness. That inquiry is broad. It includes proposed undertakings, likely compliance and remedies, and the protection available through courts and other state services in the requesting state. A parent’s anxiety establishes the defence only where the evidence shows an intensity likely to impair parenting so that the child would face psychological harm or an intolerable situation.

The father applied for the summary return to South Africa of two children aged six and four. It was accepted that the mother had wrongfully retained them in England. She relied only on Article 13(b) of the Hague Child Abduction Convention 1980, alleging domestic abuse, the father’s excessive drinking, and psychological harm to herself if required to return.

His Honour Judge Bellamy, sitting as a Deputy High Court Judge in the Family Division, dismissed the application on 21 September 2018. He held that the mother had established the Article 13(b) defence. The father appealed, contending that the evidence did not establish a grave risk and that the judge had not adequately considered the future circumstances of a return or his proposed protective measures.

The central issue was whether the evidence and the proposed safeguards justified the conclusion that a return would expose the children to the grave risk required by Article 13(b).

1. Appeal allowed. The first-instance order was set aside and the father’s return application was remitted for an urgent rehearing. The judge’s conclusion that the Article 13(b) defence had been established could not stand.

2. Article 13(b) requires an assessment of the position if the children are returned forthwith to their home state. Past domestic abuse may be highly relevant, particularly because witnessing abuse of a parent may harm a child. But the court must analyse the nature and degree of the future risk, including the circumstances in which the children and parents will live following return.

3. The approach in Re E (Children) (Abduction: Custody Appeal) requires the court to consider whether the allegations, if true, would create the requisite grave risk, and then how the child could be protected. This does not dispense with an evaluative assessment of the credibility and substance of the evidence within a summary process. The judge had not explained why future domestic abuse would occur, or why the father’s proposed measures would not sufficiently ameliorate any risk, particularly when the parents would not be living together.

4. Protective measures are not confined to undertakings given to the English court. Their likely effectiveness must be assessed, including compliance, available remedies, and the assistance obtainable from courts and state services in the requesting state. If enforceability is disputed, it should be raised early so that information about available measures, enforcement, or a mirror order can be obtained expeditiously.

5. The medical and other evidence did not support the finding that return would be psychologically disabling for the mother, or that her anxiety would destabilise her parenting to the point of causing the children psychological harm or an intolerable situation. New material was not admitted on appeal. It reinforced the conclusion that the application required rehearing rather than final determination by the Court of Appeal.

• Court of Appeal (Civil Division): allowed the father’s appeal and remitted the Hague Convention return application for an urgent rehearing: [2018] EWCA Civ 2834.
• High Court of Justice, Family Division: His Honour Judge Bellamy, sitting as a Deputy High Court Judge, dismissed the father’s return application on 21 September 2018 after holding that the mother had established the Article 13(b) defence. No citation was stated.