G v D (Art 13b: Absence of Protective Measures)

Article 13(b) of the 1980 Hague Convention is not confined to cases where children would return to a parent’s care. The court must assess the situation on prompt return, taking the alleged risk at its highest while evaluating relevant evidence consistently with the summary nature of the process. Protective measures in the requesting state are central. The usual presumption that its authorities can protect children equally may be displaced by evidence of inability, incapacity or unwillingness to provide protection. Where children are secure under existing measures, neither parent can care for them, and the requesting state opposes return without identifying arrangements, return may create an intolerable situation. If the exception is established, the court retains a discretion to return, but must consider the children’s best interests, stability and welfare proceedings.

The father sought the summary return of two children to Belgium under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention. The children had been habitually resident in Belgium and their removal was accepted to be wrongful. They had since spent nearly a year in England, where they were living together in foster care under ongoing care proceedings.

The father accepted that he could not care for them, and the mother was assessed as unable safely to do so. There were no identified relatives in Belgium. The Belgian authorities repeatedly opposed return and declined to specify protective arrangements, beyond referring to possible ad hoc measures. The central issues were whether Article 13(b) was established and, if so, whether the court should nevertheless order return.

1. Application dismissed. The court found that the exception in Article 13(b) of the 1980 Hague Convention was established and declined to exercise its discretion to order return.
2. The court applied the principles summarised from Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27. Article 13(b) requires a grave risk of physical or psychological harm or an intolerable situation. The burden is on the person opposing return, assessed on the ordinary balance of probabilities while allowing for the limitations of summary proceedings. The assessment is future-focused and must consider the protective measures available on return.
3. The assumption that authorities in the requesting state can protect children equally is part of the analysis, as reflected in Re H (Abduction: Grave Risk) [2003] EWCA Civ 355, Re M (Abduction: Intolerable Situation) [2000] 1 FLR 930 and Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433. That presumption does not resolve the case where evidence demonstrates inability, incapacity or unwillingness to implement protection. The methodology from Re E is not abstract: relevant evidence may be evaluated in a manner consistent with the summary process, as explained in Re C (Children)(Abduction: Article 13(b) [2018] EWCA Civ 2834 and Re S (A Child)(Abduction: Rights of Custody) [2012] 2 WLR 721.
4. On the facts, neither parent could care for the children and no relative in Belgium had been identified. The Belgian authorities had repeatedly opposed return and, after sustained enquiries, had not identified who would take custody, where the children would live, what proceedings would be commenced or how contact with the mother would operate. The father’s standard undertakings could not supply measures outside his control. Returning the children from secure, stable foster care and active protective proceedings to that uncertainty would place them in an intolerable situation. The case was not treated as a settlement case under Article 12.
5. Although Article 13(b) leaves a discretion to order return, return was not in the children’s best interests. It would disrupt their settled placements, delay determination of their long-term welfare and move them from security to manifest uncertainty. The stay on the care proceedings was lifted and the matter was reallocated for determination under Part IV of the Children Act 1989. The court declined to determine the father’s separate complaints under Articles 6 and 8.