MB v TB (Art 13 Alleged Risk of Oppressive Litigation)

In a summary-return application under the Hague Convention on the Civil Aspects of International Child Abduction, a respondent relying on Article 13(b) bears the burden of proving a grave risk of harm or an intolerable situation. The risk must be assessed at its highest on the available evidence, but not by assuming the maximum risk alleged without evidential support. The assessment is future-facing and protective measures need be considered only if the threshold is met. Previous findings about a parent in a different relationship and factual setting require great caution and cannot replace evidence in the present proceedings. Under international comity, the courts of the requested State should generally be regarded as competent to address the child’s welfare.

The father applied under the Child Abduction and Custody Act 1985 for the summary return of his eight-year-old daughter to Israel under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction. The mother admitted habitual residence, the father’s custody rights, lack of consent, and wrongful removal within one year. She relied on Article 13(b), alleging that the father’s oppressive use of litigation and conduct amounting to parental alienation created a grave risk of psychological harm or an intolerable situation. She abandoned reliance on the child-objection exception. The central issue was whether either alleged risk was established on the evidence and, if so, whether protective measures could address it.

Disposition. The mother failed to establish the Article 13(b) exception. Because the removal was wrongful and no exception was made out, the court ordered L’s summary return to Israel, intended to occur before the new school term on 24 April 2019.

1. Article 13(b) test. Applying Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144, the court held that the opposing party bears the burden on the balance of probabilities. The risk must be grave rather than merely real. An intolerable situation is one which the particular child, in the particular circumstances, should not be expected to tolerate. The inquiry is directed to the future situation on return. Protective measures need be considered only where the threshold is met. Maternal anxieties may in principle qualify where they would destabilise care.
2. Assessment of risk. The risk must be assumed at its highest on the available evidence, consistently with the summary nature of Hague proceedings. That requires a reasoned assessment of the maximum risk supported by the evidence, not an abstract assumption of the maximum risk asserted. There was no evidential basis for assuming that the father would alienate L from her mother. The evidence instead showed a loving relationship with both parents.
3. Prior findings. Findings in MB v SB [2014] EWHC 3719 (Fam) and [2014] EWHC 3721 (Fam), concerning a different relationship and factual framework, were treated with great caution. Importing those observations into the present case would risk acting on assumption and prejudice rather than evidence. The court was required to rely primarily on the evidence before it.
4. Litigation and comity. Further litigation in Israel was reasonably foreseeable and might be protracted, particularly given the parties’ history and financial disparity. Nevertheless, under international comity, the Israeli courts had to be regarded as competent to deal with L’s welfare. The approach was consistent with Re S (Abduction: Intolerable Situation: Beth Din) [2000] 1 FLR at 463, and the relevant observations in MB v SB [2014] EWHC 3721 (Fam) were reassuring. The evidence also showed that L had remained resilient and had suffered no appreciable emotional harm from the earlier litigation.
5. Maternal anxiety and protective measures. The mother provided no evidence of a psychological or psychiatric condition likely to disable her care of L on return. Her reliance on Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 AC 257 was therefore distinguishable on the evidence. As the alleged risks did not meet the Article 13(b) threshold, consideration of the father’s proposed protective undertakings was unnecessary.