M v G (Hague Convention: Article 13 (b) defence) (Rev 1)

Article 13(b) requires the court to assess the situation that would exist on the child’s return, including the effect of the return on a primary carer’s mental health. A grave risk must be established on the balance of probabilities. Subjective anxieties may be relevant even where objectively unreasonable, but the court must assess their likely effect on the child in the particular circumstances. Allegations should be assessed in their wider factual context. The court must also consider protective measures capable of preventing an intolerable situation. Where the threshold is not established, or an adequate package of protective measures sufficiently mitigates the risk, the court may order summary return.

The father applied under the Hague Convention for the summary return of his four-and-a-half-year-old son to Australia after the mother retained him in England beyond an agreed three-month visit. The parties agreed that the child had been habitually resident in Australia and that the retention was wrongful under Article 3.

The mother relied on Article 13(b), alleging that return would cause grave physical or psychological harm or place the child in an intolerable situation because of the effect on her mental health, the history of domestic abuse, alleged drug use and alleged sexualised comments by the child. The central issue was whether the defence was established and, if so, whether agreed protective measures sufficiently mitigated the risk.

1. Return ordered. The mother’s Article 13(b) defence was rejected and the child was ordered to return to Australia on a date to be fixed, with liberty to apply.
2. The governing principles were those restated in Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758. The burden lay on the mother, the standard was the balance of probabilities, and the risk had to be grave. The assessment concerned the future situation following return, including available protective measures.
3. Consistently with In the matter of S (A Child) [2012] UKSC 10, the mother’s subjective anxieties could found an Article 13(b) defence if their effect on her mental health would create an intolerable situation for the child. The objective basis for those anxieties remained relevant to assessing their likely effect.
4. The court assessed the mother’s allegations and psychological evidence in the wider context. Her likely increase in distress, depression and anxiety was treated as an exacerbation of pre-existing difficulties rather than a risk sufficiently connected to return to constitute grave harm or an intolerable situation. Her history of obtaining support, the more recent parental arrangements, the absence of further substantiation of the sexual allegations and the indications that she had initially intended to return were material.
5. In any event, the agreed protective measures provided accommodation, financial support, stability and access to counselling or therapy pending consideration by the Australian court. Those measures were sufficient to mitigate any Article 13(b) risk.
6. The Australian court was best placed to determine future care arrangements and could consider any application by the mother to relocate with the child.