B (A Child), Re (Abduction: Article 13(B))

Under Article 13(b) of the 1980 Hague Child Abduction Convention, the assessment is forward-looking. Where a parent’s mental health would probably deteriorate on return so as to make the child’s situation intolerable, the defence may be established even if the parent’s fears are subjective. Objective circumstances remain relevant evidence, but do not displace that inquiry.

An application to set aside a return order requires a fundamental change of circumstances undermining the basis of the original order. If that threshold is met, the court must redetermine the Convention application on all relevant material. Practical reliability of protective undertakings, and their effect on the returning parent’s ability to obtain treatment, are material to both issues.

The mother removed B from Bosnia to England. The father obtained a return order under the 1980 Hague Child Abduction Convention in September 2019. The Family Court rejected the mother’s Article 13(b) defence, finding that her mental health did not create the necessary grave risk if she returned with B.

After the father obtained a Bosnian provisional custody order despite an undertaking not to seek separation of B from the mother, the mother applied to set aside the return order. New psychiatric and Bosnian-law evidence addressed her likely mental-health deterioration, the practical effect of the father’s conduct, and the unenforceability of the undertakings in Bosnia. The Family Court dismissed that application on 27 February 2020. The mother appealed.

1. Appeal allowed. The court set aside the return order and dismissed the father’s Convention application. Article 13(b) was clearly established.

2. The judge had wrongly conflated the decision whether to set aside the September order with the subsequent redetermination of the substantive Convention application. The correct approach is to decide whether reconsideration should be permitted; determine the further evidence required; decide whether to set aside the order; and, if it is set aside, determine the Convention application afresh on all relevant material.

3. The applicable gateway was a fundamental change of circumstances undermining the basis of the original order, as stated in Re W (Abduction: Setting Aside Return Order) [2019] 1 FLR 400. The father’s breach of his undertaking, the psychiatric evidence, and the mother’s consequent inability to return had to be assessed cumulatively. They plainly justified setting aside the original order.

4. Applying In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 and In re S (A Child) (Abduction: Rights of Custody) [2012] 2 AC 257, the critical issue was what would happen if B returned with the mother. Her anxieties did not need to be objectively reasonable. Objective evidence was relevant to evaluating her likely mental state, but could not be used after accepting that her fears were subjectively insurmountable.

5. The father had acted directly contrary to his undertaking by obtaining the Bosnian custody order. The undertakings were not enforceable in Bosnia without recognition and had therefore proved far from reliable. The psychiatric evidence showed that the mother would probably feel unsafe, be unable to engage effectively with treatment, and suffer serious deterioration affecting her parenting. Available services did not answer that risk.

6. There was consequently a grave risk that B would be placed in an intolerable situation through the mother’s deterioration and their prospective separation. A return of B without the mother could not properly be ordered once Article 13(b) was established.

1. Court of Appeal (Civil Division): Allowed the mother’s appeal, set aside the return order and dismissed the father’s Convention application: [2020] EWCA Civ 1057.
2. Family Court: On 27 February 2020, dismissed the mother’s application to set aside the September 2019 return order.
3. Family Court: In September 2019, ordered B’s return to Bosnia under the 1980 Hague Child Abduction Convention.