Z v D (Art 13 Refusal of Return Order)

Under Art 13(b) of the 1980 Hague Convention, the court must assess the risk on an immediate return by reference to the evidence and the summary nature of the proceedings. Assuming the alleged risk at its highest does not prevent a reasoned evaluation of the allegations. Protective measures must be examined concretely, with careful scrutiny of their effectiveness, compliance and available remedies. General confidence in the protective capacity of the requesting State is insufficient without specific evidence of the measures proposed.

The child-objections exception involves a factual gateway followed by an unconfined discretion. A mature and authentic objection, considered with welfare factors and Convention policy, may justify refusing return. Where grave risk is established and protection is inadequate, the discretion should not be exercised to order return.

The mother applied under the Child Abduction and Custody Act 1985 for the summary return of F, a Brazilian child, to Brazil under the 1980 Hague Convention. F had travelled to England for a holiday and was retained after the agreed return date. The parties accepted that the retention was wrongful under Art 3.

The father opposed return on the grounds that there was a grave risk of physical or psychological harm under Art 13(b), and that F objected to returning and had attained sufficient age and maturity for her views to be taken into account. The central issues were whether either exception was established and whether the court should exercise its resulting discretion to order return.

The mother’s application was dismissed and no summary return order was made.

1. Article 13(b). The court applied the principles in Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144. The evidence was evaluated on the ordinary balance of probabilities while respecting the summary nature of the proceedings. The court assumed the asserted risk at its highest, but also conducted a reasoned assessment of the relevant evidence. This approach did not require the allegations to be treated as wholly unexamined.
2. The court found a reasonable basis for assuming that F would face a high risk of physical and emotional abuse by her mother, and a risk of witnessing domestic abuse and drug use by the mother’s partner. The accounts given by F, the maternal grandmother and the maternal aunt, together with the surrounding evidence, were sufficiently cogent.
3. Following Re P (A Child) (Abduction: Consideration of Evidence) [2018] 4 WLR 16, Re C (Children) (Abduction: Article 13(b)) [2018] EWCA Civ 2834 and Re S (A Child) (Hague Convention 1980: Return to Third State) [2019] 2 FLR 194, the protective measures had to be assessed concretely. No specific evidence showed what Brazilian child-protection authorities would do. The maternal grandmother and aunt could not guarantee F’s safety. The mother’s undertakings were bare, insufficiently comprehensive and unsupported by evidence of enforcement or compliance. An adjournment would cause unacceptable delay in the Convention proceedings.
4. Consistently with Re M (Children)(Abduction: Rights of Custody) [2008] AC 1288 and Re D (Abduction: Rights of Custody) [2007] 1 AC 619, it would be inappropriate and perverse to exercise the discretion to return F into the grave risk identified. The Article 13(b) conclusion was determinative.
5. For completeness, the court also applied the child-objections framework in Re M (Republic of Ireland)(Child’s Objections)(Joinder of Children as Parties to Appeal) [2015] 2 FLR 1074, endorsed in Re F (Child’s Objections) [2015] EWCA Civ 1022. F’s objection was genuine, strong, reasoned, balanced and mature. It was not the product of parental influence. Her objection, her settled circumstances and her sense of safety in England also justified refusing return in the exercise of the discretion.
6. The court emphasised that the outcome depended on the particular and unusual facts, including the child’s disclosures after arrival and the absence of adequate protective measures. It was not treated as a paradigm case of wrongful retention following a holiday or as forum shopping.

This was a first-instance application. The proceedings were issued on 6 April 2020, following the mother’s application to the Brazilian Central Authority. Judd J gave directions on 30 April 2020, including for a Cafcass report. No appellate decision is stated.