C v B

Under Article 13(b) of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the returning parent must establish a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation. The inquiry is child-focused and prospective. It must address the situation on return and any protective measures available in the state of habitual residence.

Unsatisfactory accommodation, financial hardship, temporary reliance on benefits, or possible separation from a primary carer will not necessarily satisfy the exception. Domestic abuse and coercive or controlling behaviour may do so, but the court must assess the evidence, the likely effect on the children, and whether protective measures can sufficiently manage the risk. A return order may be deferred to allow the court of habitual residence to make welfare and protective orders.

The father applied under the 1980 Hague Convention on the Civil Aspects of International Child Abduction for the summary return of his two young sons to Lanzarote, Spain. The mother had removed them to England without the father’s agreement and opposed return under Article 13(b), relying on alleged domestic abuse, coercive and controlling behaviour, financial insecurity, inadequate accommodation, and the risk of arrest and separation from the children.

The removal was accepted to be wrongful. The issues were whether the mother had established a grave risk of harm or an intolerable situation, whether protective measures could address any risk, and whether return should nevertheless be deferred pending proceedings in Spain.

1. The removal was wrongful and the Article 12 obligation to order return applied unless the mother established an Article 13 exception. The burden was on her, on the balance of probabilities, and the exception was of restricted application.
2. Article 13(b) required a prospective assessment of the situation on return. The court considered the risk to the children, including risks arising indirectly from the mother’s circumstances. The words “grave” and “intolerable” required a high level of seriousness, assessed in the circumstances of these particular children.
3. Domestic abuse, including coercive or controlling behaviour, could create a grave risk to children even without physical violence. The alleged abuse was powerful, but the risk could be managed in the short term by the father’s undertakings, Spanish social-services support, and orders of the Spanish court.
4. The financial and accommodation difficulties were unsatisfactory but did not amount to an intolerable situation or establish a grave risk of physical or psychological harm. The possible arrest and separation risk could be reduced by withdrawal of the police complaint.
5. A return order was therefore made. However, return was deferred until after the Spanish custody hearing listed for 7 July 2021. The case was restored for a further inter partes hearing on or about 9 July, and written confirmation withdrawing the police complaint was made a condition precedent to implementation.