JP v TP

Under Article 13(b) of the Hague Convention, the party opposing return must establish a grave risk of physical or psychological harm or an intolerable situation if the child is returned forthwith. The court may evaluate the allegations where the evidence permits it to do so; it need not accept them at their highest. The assessment is made against the situation at the time of retention, while taking account of recent improvements, available support and protective measures in the requested and requesting states. A child’s preference to remain in the requested state is not necessarily an objection sufficient to engage the Article 13 discretion. The court must distinguish a preference from a genuine objection and assess the child’s maturity and the possible influence of the abducting parent.

The applicant sought the return of her 10-year-old son to New Zealand under the Hague Convention. The child had travelled to England to visit his father but was retained there after the father decided not to return him. The father opposed return on two grounds: that the child objected to returning and that return would expose him to a grave risk of harm or an intolerable situation because of the mother’s care, mental health, alleged alcohol misuse and domestic circumstances.

The court considered evidence from the parents, professionals, school and support services, together with proposed undertakings and safeguards. The central issues were whether the child had established the Article 13 objections gateway and whether the Article 13(b) defence had been proved.

1. Return ordered. Neither defence was established. Article 12 therefore required the child’s return to New Zealand forthwith.
2. Child’s objections. The child was sufficiently mature for his views to be heard, but his expressed preference for England lacked strength, detail and independent force. It was therefore a preference, not an objection. Even if the gateway had been met, the court would not have exercised its discretion against return because of the child’s limited maturity and the father’s influence.
3. Article 13(b). The father bore the burden of proving a grave risk or intolerable situation. The court could evaluate the allegations in the summary proceedings and was not required to take them at their highest. Historic concerns had to be assessed in the context of the circumstances at retention, recent improvements, support services and available protective measures.
4. The evidence did not establish the required grave risk. Recent support had improved school attendance and parenting. The evidence did not establish a current grave risk from the mother’s mental health, and the issues concerning weight and diagnosis did not satisfy Article 13(b).
5. The court accepted that conflict involving the mother’s partner created some risk, but accepted undertakings preventing contact. Those undertakings, professional support, child-protection services and the father’s ability to seek relief in New Zealand reduced the risk below the grave threshold.
6. In additional reasons, the court found no recent evidence that the child would self-harm on return and reaffirmed that the undertakings were protective measures when considered with the available services.