Re W

Under Article 13(b) of the 1980 Hague Child Abduction Convention, the court must assess all relevant circumstances from the child’s perspective, including available protective measures. The exception remains restricted, but there is no mandatory preliminary “first hurdle” which permits a court to discount a defence without that assessment.

An enforced and indeterminate separation of young children from their lifelong primary carer may place them in an intolerable situation. The fact that the abducting parent caused the separation does not displace the focus on the children’s situation.

The father sought the summary return of two young children from England to Texas under the 1980 Hague Child Abduction Convention. The mother, a British national, was willing to return with them but was highly unlikely to obtain permission to re-enter the United States.

Gwynneth Knowles J ordered the children’s return with the mother if she obtained a visa, but directed their return without her if the visa application failed. The mother appealed only against that latter provision. The central issue was whether return without their primary carer for an uncertain period would establish the Article 13(b) defence.

1. The appeal was allowed. The direction requiring the children’s return to the United States without their mother if her visa application failed was discharged. The conditional direction for return with the mother remained in place.
2. Article 13(b) of the 1980 Hague Child Abduction Convention is of restricted application. Nevertheless, the inquiry is whether there is a grave and real risk that return would expose the child to harm or an intolerable situation. The focus is the child’s situation, rather than the source of the risk. The court applied the guidance in Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144.
3. The judge erred by treating the mother’s Article 13(b) case as failing at an initial “first hurdle”. The inquiry requires consideration of all relevant matters, including protective measures where relevant. Re K (1980 Hague Convention: Lithuania) [2015] EWCA Civ 720 did not create a mandatory two-stage process.
4. The judge had not sufficiently analysed the children’s position if they returned without their mother. The mother’s allegations about the father and his family were potentially relevant to that assessment. The court distinguished AT v SS [2015] EWHC 2703 (Fam); it did not govern a case in which the mother’s exclusion from the requesting state would itself create the separation.
5. If returned without the mother, children aged five and three would be compulsorily separated from their lifelong main carer for an indeterminate period, with no information as to when they would be reunited. That was a situation they should not be expected to tolerate. The mother’s responsibility for the original separation from the father did not alter that conclusion. The court therefore determined the issue itself rather than remit it for rehearing.

• Court of Appeal (Civil Division) — In [2018] EWCA Civ 664, allowed the mother’s limited appeal and discharged the provision requiring the children’s return without her following refusal of a visa.
• High Court of Justice, Family Division — Gwynneth Knowles J ordered the children’s return under the 1980 Hague Child Abduction Convention, with the mother if she obtained a visa and without her if she did not.