E (Abduction: Article 13b Deferred Return Order)

In a Hague Convention return application, the court must assess the situation the child would actually face on return, including the effectiveness of proposed protective measures. A grave risk may arise from the cumulative effect of physical, psychological and developmental risks, even where individual risks would not meet the threshold alone. Comity does not permit return to public care without sufficient information about the proposed placement and the child’s needs. An order deferred for an uncertain period, requiring extensive domestic welfare assessments and contact work, is outside the proper purpose of interim powers and return-order stays. Where the Article 13(b) defence is established and adequate protection is unavailable, the court may decline its residual discretion to order return.

The father applied under the 1980 Hague Convention for the return of his daughter, E, to Spain. The mother had brought E to England in January 2018. The court first had to determine whether E was habitually resident in Spain immediately before her removal. It then had to decide whether return would expose E to a grave risk of physical or psychological harm or place her in an intolerable situation under Article 13(b).

E was in foster care under protective measures in England and had serious emotional and psychological difficulties. The father proposed return either to his care or to Spanish public care, with supervision, therapy and a staged reintroduction of contact. He also sought a deferred or stayed return order while further assessments were undertaken.

1. Habitual residence. E was habitually resident in Spain. The inquiry was child-focused and concerned integration into a social and family environment. Residence need not be permanent, and parental intention was relevant but not determinative. E’s stable residence in Spain, medical care, nursery attendance and contact with other children established the requisite integration, albeit on a fine balance.

2. Article 13(b). The court had to examine concretely the future situation on return, rather than merely identify risks in the abstract. The individual risks of physical harm from the father and inappropriate conduct by E’s half-brother did not alone satisfy the grave threshold. Taken cumulatively with E’s profound vulnerability, developmental needs, history of instability, concerns about the father’s protective capacity and the likely loss of her developing attachment to her foster carer, the risks were grave and would place E in an intolerable situation.

3. Protective measures. Comity required an assumption that Spanish authorities were competent to protect children, but did not justify return to Spanish public care without information about the placement, responsible authority, available services, language environment and contact arrangements. The consent required for public care under Article 56 of BIIa was also absent. The father’s proposals did not adequately address the immediate developmental harm, the uncertainty about E’s readiness for a move or the concerns about his parenting.

4. Deferred return. Section 5 of CACA concerned interim directions before determination of the Convention application. Authorities on stays or suspensions contemplated short, defined periods for proceedings or orders in the state of habitual residence. The proposed order would instead require potentially indefinite domestic welfare assessments and risk findings, contrary to the summary and jurisdictional structure of the Convention and Article 16 of BIIa. It was therefore refused.

5. The Article 13(b) defence was made out. The court declined its residual discretion to order return and dismissed the father’s application. The dismissal automatically revived the stayed care proceedings under rule 12.52(4)(a) of the Family Procedure Rules 2010.

First-instance decision. No earlier appellate decision concerning this application was stated.