B v A

Under Article 13(b) of the 1980 Hague Convention, the person opposing return bears the burden of proving a grave risk that return would expose the child to physical or psychological harm or an intolerable situation. The threshold is high. The court must assess the position on return, including available protective measures. A parent’s subjective anxiety may constitute the source of an intolerable situation if its effect on parenting would expose the child to such a risk.

A child’s objections may establish the Article 13(2) gateway without determining the application. The resulting discretion is at large and requires consideration of Convention policy, the child’s welfare, the circumstances of the objections and the arrangements available in the state of habitual residence.

The father applied under the Child Abduction and Custody Act 1985 for the summary return of the parties’ eight-year-old son to New South Wales under Articles 3 and 12 of the 1980 Hague Convention. The mother had removed the child from Australia to England without the father’s knowledge while Australian relocation proceedings remained pending.

She relied on Article 13(b), alleging that return would create an intolerable situation through the effect on her mental health and parenting capacity. She also relied on the child’s objections under Article 13(2). The central issues were whether either gateway defence was established and, if so, whether the court should exercise its discretion against return.

1. Article 13(b). The mother failed to establish a grave risk of physical or psychological harm or an intolerable situation. The burden was on her and the standard was the balance of probabilities. The court applied the high threshold required by Article 13(b), considering the mother’s medical evidence, the expert psychiatric evidence, the child’s presentation and the protective arrangements available in Australia.
2. The court accepted that a risk arising from a parent’s subjective anxiety may in principle engage Article 13(b), because the source of the risk is irrelevant if the effect on the child would be intolerable. On the evidence, however, the mother’s anxiety was not shown likely to destabilise her parenting to that degree. Financial difficulty, lack of family support, relocation to Australia and the likely delay in Australian proceedings did not meet the threshold.
3. Child’s objections. The child’s objections established the Article 13(2) gateway. His objection to returning to Australia was potentially conflated with objection to particular circumstances there, but the two could not be separated in his mind. The gateway did not determine the application. The court had a discretion at large.
4. In exercising that discretion, the court gave substantial weight to the Convention’s purposes, comity, the extant Australian order, the pending Australian relocation proceedings, the child’s relationships with his father and siblings, the influence exerted by the mother over his expressed views, his schooling and the availability of interim protective measures in Australia. The child’s views were therefore given weight but were not treated as determinative.
5. The father’s undertakings provided adequate arrangements on return. The application was granted. The child was to be returned forthwith, ideally in the mother’s care, or otherwise in the father’s care, with the Australian court invited to list an early interim welfare hearing.