YP v XP

In Hague Convention proceedings, a wrongful removal should ordinarily result in the child’s prompt return unless an Article 13(b) defence is established. The person opposing return bears the burden of proving a grave risk of physical or psychological harm or an intolerable situation. The assessment is prospective and must address the situation on return, including protective measures available in the child’s home country.

Summary proceedings are not an appeal or review of welfare decisions made by the courts of the child’s habitual residence. Allegations already investigated and determined there should not ordinarily be re-litigated in the return proceedings. A parent’s anxiety may support an Article 13(b) defence only where its intensity is likely to destabilise parenting so seriously that the child’s situation would become intolerable.

The applicant father sought the summary return of his daughter to France under the Hague Convention following the respondent mother’s wrongful removal of the child to England. The child had lived all her life in France and was habitually resident there. The parents had shared care arrangements established by the French courts.

The mother relied on Article 13(b), alleging domestic abuse, sexual abuse, anxiety, the French sole-custody order and the prospect of separation from the child. She also sought to rely on the child’s objections, although an earlier case-management decision had refused a Cafcass report.

The central issue was whether the mother had established a grave risk or intolerable situation that justified refusing return.

1. Disposition. The mother failed to establish the Article 13(b) defence. A return order was made, with directions for the mother to accompany the child or for the father to collect her and return her to France by 23.59 on 29 March 2022.
2. The burden lay on the mother to prove the exception on the balance of probabilities. The risk had to be grave, not merely real, and the relevant harm or intolerable situation was the one expected to arise during the period required for the French court to determine the child’s long-term future.
3. The court was entitled to evaluate the evidence and assess the credibility and substance of the allegations. It was not appropriate to conduct a critique of the French investigation or to treat the proceedings as an appeal from, or review of, the French welfare decisions. The allegations of sexual abuse had been investigated, considered and dismissed by the French court when making its custody order.
4. The mother’s anxieties were not shown to be of an intensity likely to destabilise her parenting so as to make the child’s situation intolerable. The child had previously spent half her time with the father, would return to a familiar parent and had a nursery place available in France.
5. The French sole-custody order and the possibility of criminal proceedings did not establish an intolerable situation. The father’s undertakings and proposed protective arrangements were sufficient for the return process, and the speculative possibility of prosecution did not meet the Article 13(b) threshold.