PT (A Child), Re

Under the Hague Convention, a child wrongfully removed within one year must be returned forthwith unless a Convention exception is established. The Article 13(b) exception requires a grave risk of physical or psychological harm, or an intolerable situation, on the child’s return. A real risk of harm is insufficient. The assessment is directed to the future situation, including protective arrangements available on return. Where some harm is inevitable, the court must compare the risks associated with return and continued retention. The Covid-19 pandemic and increased risks of international travel did not, without evidence of a grave risk, justify refusing return. Adequate undertakings and arrangements may satisfy the protective requirement under Article 11(4) of Brussels IIa.

The father applied under the Child Abduction and Custody Act 1985, the Convention on the Civil Aspects of International Child Abduction 1980 and Article 11 of Council Regulation (EC) No. 2201/2003 for the summary return of his nearly twelve-year-old daughter from England to Spain. The child, a Spanish national habitually resident in Spain, had been brought to England by her mother without the father’s consent.

The mother relied on alleged consent or acquiescence and on Article 13(b), including separation from her and the child’s half-sibling, changed circumstances in Spain, alleged paternal behaviour and the Covid-19 pandemic. The central issues were whether the removal was wrongful and whether any exception to the return obligation had been established.

1. Return ordered. The court found that the child was habitually resident in Spain, that parental responsibility was shared, and that the father was exercising custody rights when the child was removed. The mother had not established consent or subsequent acquiescence. The removal was therefore wrongful within Article 3, and the Article 12 obligation to return applied (paras [36]–[39], [49]).
2. Article 13(b). The burden lay on the mother. The relevant question was whether return would expose this particular child to a grave risk of physical or psychological harm or place her in an intolerable situation. The court applied the principles summarised in BK v NK [2016] EWHC 2496 (Fam). A real risk of harm did not reach the required threshold. The assessment concerned the future circumstances on return and the protective measures available there (paras [26], [40], [44]).
3. The likely psychological harm from separation from the mother and half-sibling was real, but fell well short of grave. Returning to live with the father full-time would be challenging, but the child would return to a familiar home, family connections and education in her primary language. The court considered return less harmful than continued retention (paras [42]–[45]).
4. The pandemic created a genuine risk of infection in either country and international travel increased that risk. However, the evidence did not establish that travel or return created the grave risk required by Article 13(b) (paras [46]–[48]).
5. Article 11(4) of Brussels IIa was satisfied by the father’s undertakings concerning contact, accommodation, neutral handovers, financial support and travel costs. The court ordered immediate return, implemented as soon as reasonably practicable, because delay risked making return practically impossible during the pandemic (paras [50]–[52]).