AB v CD

Under article 13(b) of the 1980 Hague Convention, the respondent must establish a grave risk that return would expose the child to harm or an intolerable situation. The court must examine the concrete circumstances which would face the child on return, including protective measures and the likely consequences of related criminal proceedings against the abducting parent. A parent's possible prosecution or imprisonment does not automatically establish the defence. The court must assess the likelihood and practical consequences of that outcome, together with steps which may reduce the risk. Where adequate protective arrangements exist, return may not be refused under article 13(b). A return order should be suspended only in a limited class of cases, and full disclosure is important when suspension is sought.

The applicant father sought the summary return of his young son to Italy under the 1980 Hague Convention and, insofar as applicable, Council Regulation (EC) No 2201/2003. The respondent mother had taken the child from Italy to England without the father's consent. She relied on article 13(b), alleging that return would expose the child to an intolerable situation because she might be imprisoned in Italy, separated from the child, unable to support him, or exposed to domestic abuse and controlling behaviour.

The court adjourned the hearing to obtain expert evidence on the operation and likely consequences of the Italian criminal proceedings. It also considered the continuing application of the relevant provisions of BIIa to proceedings commenced before the end of the transition period, the protective undertakings available in England and Italy, and the mother's application to suspend any return order.

1. Return order. The application was allowed. The court ordered the child's return forthwith to Italy, subject to a 14-day period to enable protective arrangements to be pursued.
2. Article 13(b). The burden lay on the mother to prove a grave risk of physical or psychological harm or an intolerable situation. The assessment had to be directed to the situation the child would actually face on return, including the effect of protective measures. The mother's asserted risk of imprisonment was not established as grave. Expert evidence showed that immediate custody was unlikely and that she could take steps, including engagement with the Italian prosecuting authorities, to reduce the risk. Nor was there a grave risk that criminal proceedings would keep her in Italy for an extended period or make the child's situation intolerable.
3. The mother's financial and accommodation case failed. She had accepted the father's interim financial offer, had not made full disclosure of her financial position, and had access to family support and accommodation options in Italy. The allegations of domestic abuse could not be finally determined in summary proceedings, but the father's undertakings, the contemplated Italian protective orders and the pending Italian civil proceedings meant that the article 13(b) threshold was not met.
4. Protective measures. For proceedings commenced before 31 December 2020, Chapter II of BIIa continued to apply as saved EU law under the Withdrawal Agreement. Article 11(4) therefore applied. The father's undertakings constituted adequate arrangements to secure the child's protection after return. They were enforceable in the United Kingdom and Italy, with protection also available under article 11 of the 1996 Hague Convention.
5. Suspension. The power to suspend a return order was available only in a limited class of cases. The mother had not provided sufficient detail about the child's life in England or the disruption which return would cause. The court therefore declined to suspend the order. Additional protective orders were made concerning travel documents, disclosure of the child's address and restrictions on removal from Italy, all lasting until the Italian court made welfare and protective orders.

First-instance decision. No prior appellate decision is stated in the judgment.