S (Father) v D (Mother)

Under the Hague Convention, a return order may direct return to a contracting state other than the child’s former state of habitual residence. Such an order is unusual but not exceptional and remains fact-sensitive.

An Article 13(b) defence requires a grave risk of physical or psychological harm. The court must assess the future situation, including whether protective measures are available and sufficiently effective. Undertakings should be detailed, concrete and limited to the period before the courts of the return state become seised. A general offer of protection is insufficient, but suitably reinforced undertakings may neutralise the grave risk.

The father applied under the Child Abduction and Custody Act 1985, the Hague Convention and Article 11 of Council Regulation (EC) 2201/2003 for the return of his four-year-old son, who had been wrongfully removed or retained in England after the family’s residence in Germany. The father ultimately sought return to Hungary, where he had resumed living.

The mother relied on Article 13(b), alleging a grave risk of physical or psychological harm arising from domestic abuse, including the father’s recent conviction for assaulting her. The central issues were whether protective measures could address the future risk and whether return could properly be ordered to Hungary, a third state.

1. Wrongful removal and Article 13. The child had been wrongfully removed or, alternatively, wrongfully retained in England. The mother therefore bore the burden of establishing the Article 13(b) exception on the ordinary civil standard. The relevant risk was a grave risk of future physical or psychological harm, including harm arising from exposure to domestic abuse.
2. Protective measures. The court had to assess the situation which the child and mother would face on return, including the availability and efficacy of protective measures. The father’s initial generalised assurances fell materially short of what was required. The court identified the necessary protections, including accommodation, financial support, non-molestation provisions, supervised contact, submission to the Hungarian jurisdiction and co-operation with welfare assessments.
3. Undertakings. Undertakings could properly smooth and protect the return for the limited period before the Hungarian court became seised. They should not delay or fetter the Convention’s return policy. Their effectiveness depended not only on enforceability but also on likely compliance and the consequences of non-compliance.
4. Return to a third state. The Convention did not require return to the former state of habitual residence in every case. Return to Hungary was in principle unobjectionable, although unusual and fact-sensitive. Hungary provided the father’s current residence and the mother had family and other connections there.
5. Disposition. After the father filed, confirmed and refined fourteen undertakings, the court found that they materially ameliorated the future risk and were sufficiently effective to neutralise the Article 13(b) defence. The undertakings were accepted and the child’s return to Hungary was ordered. They were to remain in force until the matter was placed before the Hungarian court.