AB v CD (Abduction; Undertakings)

In Hague Convention proceedings, an Article 13(b) defence requires proof of a grave risk that return would expose the child to physical or psychological harm or an intolerable situation. The court should ordinarily assess the alleged risk at its highest, while evaluating the evidence in a manner consistent with the summary process, and then consider available protective measures. Undertakings need not be enforceable in the requesting state. Their enforceability is one factor in assessing their effectiveness and the defence as a whole. A child’s objection is a gateway question of fact. If established, it gives rise to a broad discretion in which Convention objectives, welfare considerations, the authenticity and strength of the objection, and the circumstances of the proposed return are considered.

The father sought the return of two children to Kazakhstan under the 1980 Hague Convention after the mother removed them to England without his agreement. The mother accepted habitual residence in Kazakhstan and the father’s rights of custody, but relied on Article 13(b) and the older child’s objections. She alleged domestic abuse, inadequate protection in Kazakhstan, discriminatory Chechen customary practices, and risks arising from the non-enforceability there of undertakings given in England. The court also considered the mother’s pending asylum appeal and arrangements for incorporating undertakings in Kazakhstani contact proceedings.

1. Article 13(b). The mother bore the burden of establishing the exception on the balance of probabilities. The court applied the structured approach in Re E (Children) (Abduction: Custody Appeal): assess whether the alleged circumstances, if established, would create a grave risk or intolerable situation, and then consider whether protective measures could address that risk. The evidence could be evaluated, but consistently with the summary nature of the proceedings.
2. The accepted history of significant violence towards the mother did not establish a grave risk to the children. There was no evidence of safeguarding concerns in the father’s relationship with them. The alleged risk to the mother was reduced by the parties’ separation, the absence of recent violence, the availability of Kazakhstani courts and authorities, the absence of evidence of discriminatory treatment, the father’s financial support, and the lack of medical evidence concerning the mother’s mental health.
3. The proposed undertakings were not directly enforceable in Kazakhstan. That did not prevent a return order. Enforceability was only one aspect of effectiveness. Some undertakings could be performed before return; the father’s bona fides were not in doubt; Kazakhstan did not criminalise the abduction; contact proceedings were pending; and the undertakings could potentially be incorporated into an agreement lodged in those proceedings.
4. The older child’s objection was not made out at the gateway stage. Her objection was principally to living with the father, rather than to return to Kazakhstan, and her views had been formed after prolonged separation from him and exposure to the mother’s views. Alternatively, the court would exercise its discretion in favour of return, having regard to the children’s nationality, lifelong residence and family connections in Kazakhstan, the clandestine removal, the limited weight of the child’s views at her age, and the pending Kazakhstani welfare proceedings.
5. The court made a return order, but delayed implementation until the later of 30 March 2021 or seven days after lodging the proposed agreement in the Kazakhstani contact proceedings. The English order incorporated amended undertakings, and liberty to apply was granted as to implementation.

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