A v A (Return Without Taking Parent)

In a Hague Convention return application, a parent’s refusal to return with the child does not by itself establish the Article 13(b) exception. The court must assess the situation the child would face on return, including separation from the refusing parent and the protective measures available.

The court should assume the alleged risk at its highest on a reasoned and reasonable assessment of the evidence, while respecting the summary nature of the proceedings. It must then examine concretely whether the risk is grave or the situation intolerable, and whether proposed protective measures would be effective. Short-term distress caused by a transfer of care will not ordinarily satisfy Article 13(b) where there is no cogent evidence that the receiving parent cannot safely care for the child.

The father applied under the Child Abduction and Custody Act 1985 for the summary return of the parties’ 12-month-old child to the Republic of Ireland under Article 12 of the 1980 Hague Convention. The mother conceded habitual residence in Ireland, the father’s custody rights, wrongful removal and the application of Article 12, but relied solely on Article 13(b).

She alleged domestic abuse and feared that returning to Ireland would expose her and the child to danger. She stated that she would not return with the child, contending that the resulting separation would place him in an intolerable situation. The central issue was whether that separation, assessed alongside the protective measures offered by the father and the safeguards available in Ireland, established a grave risk of harm or intolerability.

1. Return order. The mother failed to establish the Article 13(b) exception. The court ordered the child’s return to the Republic of Ireland so that the courts of the child’s habitual residence could determine his welfare.
2. Article 13(b) requires a future-focused assessment of the situation the child would face on immediate return. The burden rests on the party opposing return, on the ordinary balance of probabilities. The court should assume the alleged risk at its highest, but those assumptions must be reasoned and reasonable in light of the admissible evidence and the summary nature of the process.
3. The court must examine concretely whether the child would face grave physical or psychological harm or an intolerable situation. The effectiveness of protective measures must be assessed, including compliance, consequences of breach and available remedies. Greater reliance on protective measures requires greater scrutiny.
4. The mother’s allegations remained relevant, but there was no evidence that the child had suffered harm or that the father could not safely care for him. The evidence, even taken at its highest, did not establish that the child would be directly or indirectly exposed to abuse.
5. Separation from the mother, his primary carer, would cause short-term emotional upset and disruption. In the absence of evidence that the father’s care would expose the child to harm, that disruption did not reach the grave or intolerable threshold. The father’s extensive undertakings, possible Irish proceedings and the protective role of Irish welfare authorities further reduced the risk.
6. The court also stated that the protective measures would have been sufficient had the mother relied on the risk arising from returning with the child. The return’s timing was left for further submissions.