A (A Child) (Hague Abduction; Art 13(B): Protective Measures)

Article 13(b) of the 1980 Hague Convention is a narrow exception to the duty to return a wrongfully removed child. The opposing parent bears the burden of proving, on the balance of probabilities, a grave risk of physical or psychological harm or an intolerable situation. The court assesses the situation on return, taking account of effective protective measures. In domestic-abuse cases, allegations may be taken at their highest where the summary process prevents reliable findings of fact. Protective measures may include undertakings, housing, financial support and court orders. They must be real and enforceable, rather than theoretical. Where adequate measures substantially reduce the identified risk below the Article 13(b) threshold, Article 12 requires return.

The father sought the summary return of his four-year-old daughter to Latvia under the 1980 Hague Convention. The child had been habitually resident in Latvia and was removed to England by the mother without the father’s consent. The mother alleged serious domestic abuse and relied on Article 13(b).

The father denied most allegations and offered undertakings and other protective measures, including accommodation, financial support, non-contact provisions and registration of the measures in Latvia. The central issues were whether the Article 13(b) threshold was established and, if so, whether the proposed measures adequately addressed the risk.

1. Return order. The court ordered the child’s return to Latvia under Article 12, subject to the father putting his undertakings in writing and applying to the Latvian court for their registration and enforcement.
2. Article 13(b) framework. Article 13(b) has restricted application. The burden rests on the parent opposing return, and the standard is the balance of probabilities. The risk must be grave; a merely real risk is insufficient. The court must assess the prospective situation on an immediate return, including the effect of available protective measures.
3. Domestic abuse allegations. The court could not resolve the parties’ sharply conflicting accounts in the summary proceedings. Taking the mother’s allegations at their highest, the alleged physical, emotional and coercive abuse would satisfy the Article 13(b) threshold because domestic abuse between parents may seriously harm a child directly or through its effect on the abused parent.
4. Protective measures. The relevant question was whether the measures would be adequate in practice. The offered measures addressed the principal risks by separating the parties, preventing contact and removal of the child, providing accommodation and financial support, and securing access to Latvian judicial protection. Protective measures are not confined to injunctions and may include housing and financial support.
5. The European and Hague instruments provided routes for recognition or registration in Latvia. Taken together, the measures were real and enforceable and reduced the risk below the Article 13(b) threshold. The mother therefore failed to establish the exception, and the court was obliged to order return.