HM v HA

Under Article 13(b) of the 1980 Hague Convention, the person opposing return bears the burden of proving a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation. The court must evaluate the evidence on the balance of probabilities, while recognising the summary nature of Hague proceedings. It may assess whether allegations have sufficient substance to constitute such a risk and may assume them at their highest, provided the assumptions are reasoned and reasonable. The inquiry concerns the situation on return, including available protective measures. Questions about which parent should care for the children, or whether they should live in one country rather than another, generally belong to the welfare court. A risk amounting to discomfort and distress, rather than grave harm or intolerability, does not establish the defence.

The mother applied under the 1980 Hague Convention for the summary return of the parties’ two young children from England to Poland. The children had been habitually resident in Poland and were retained in England after an agreed visit. The father accepted that the retention was wrongful but relied on Article 13(b), alleging that the mother had behaved aggressively towards him and the children, particularly the child with autism.

The central issue was whether, assuming the alleged risks at their highest and considering the circumstances of return, the father had established a grave risk of physical or psychological harm or an intolerable situation.

1. The application was granted. The children had been habitually resident in Poland, their retention was wrongful under Article 3, and they were to be returned under Article 12 unless the Article 13(b) defence was established.
2. The burden lay on the father, applying the ordinary balance of probabilities. The court had to remain mindful that Hague proceedings are summary and are not ordinarily a fact-finding trial. It was not required to determine finally whether every allegation was true.
3. Nevertheless, the court had to assess the substance and credibility of the allegations sufficiently to determine whether they could give rise to an Article 13(b) risk. Any assumption that the allegations were true or represented their maximum seriousness had to be reasoned and reasonable. The approach did not require the court to disregard relevant evidence.
4. The relevant risk was the future situation on return. The court considered the children’s proposed living arrangements, the mother’s work, assistance from the maternal grandmother and the child’s return to his therapeutic nursery. Protective measures would become relevant if a grave risk were otherwise established.
5. Assuming the allegations at their highest, the likely consequences were discomfort and distress, not a grave risk of physical or psychological harm or an intolerable situation. The issues concerning which parent should care for the children and whether they should live in Poland or England were welfare questions for the court exercising welfare jurisdiction.
6. The father had not established the Article 13(b) defence. The court ordered the children’s return to Poland and would fix the return date if the parties could not agree.