B & C, Re

In Hague Convention child-abduction proceedings, the Article 13(b) defence requires proof of a grave risk that return would expose the child to physical or psychological harm or an intolerable situation. The court must evaluate the evidence consistently with the summary nature of the proceedings, assume the risk at its highest on a properly reasoned basis, and consider protective measures capable of mitigating it.

A parent cannot manufacture an Article 13(b) defence by refusing to return, but an authentic refusal directly caused by the risk may be relevant. Establishing an exception merely opens the door to a discretion whether to order return. A child’s objections are relevant but not determinative. The court must give weight to the Convention’s policy and to the courts of the child’s habitual residence.

The father applied under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention for the summary return of three children from England to Germany. The mother had removed the children from Germany, where they had lived all their lives and where German courts and social services had been engaged with the family.

The mother initially relied on breach of custody rights, grave risk under Article 13(b), and the children’s objections under Article 13. She abandoned the custody-rights defence and did not pursue a proposed Article 12 settlement defence. During the hearing she stated that she would not return with the children. The central issues were whether an Article 13 defence was established, whether protective measures could address any risk, and whether the children’s objections should affect the discretionary decision.

1. Return ordered. The removal was wrongful because the father retained joint custody rights under German law. The 2014 document acknowledged the mother’s primary role but expressly preserved the father’s duties under German joint-custody law.
2. Article 13(b). Applying the principles in Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758, as distilled in Uhd v McKay [2019] EWHC 1239, the court had to assess whether a grave future risk existed on return. The evidence was considered in a manner appropriate to summary proceedings. The court could assess credibility and substance, while avoiding a full fact-finding exercise.
3. The mother failed to establish grave risk. The historic allegations concerning the father had not caused her to leave Germany, the children had maintained relationships with him, and the German authorities had been engaged with the family. The alleged risk from the mother’s former husband was not supported by evidence that he had attempted to locate or harm her after separation. Protective measures were available, including the children living with the mother pending German orders, no contact with the father unless agreed or ordered, undertakings concerning non-molestation and disclosure of whereabouts, and independent retention of passports.
4. The mother’s refusal to return was found to be tactical rather than a consequence of a fully established defence. The court nevertheless considered the position if she did not return and concluded that the German authorities could address the children’s welfare and protection.
5. Even if Article 13(b) had been established, the court would have exercised its discretion to return the children. Germany was their habitual residence and the location of their language, family connections, education, prior welfare proceedings and relevant evidence. The German courts were better placed to decide future welfare issues.
6. The children had attained an age and maturity at which their views should be taken into account, but their objections were not determinative. Applying the guidance summarised in B v P [2017] EWHC 3577, the objections were outweighed by the Convention considerations and the wider evidence, and were in part influenced by the mother’s opposition to contact.

The order for return was made subject to finalisation of the protective measures and practical arrangements.