ADK v ASI

In an application for summary return under the 1980 Hague Convention, an Article 13(b) defence requires a structured, forward-looking assessment.

1. The court must first decide whether the allegations, if true, could establish a grave risk of physical or psychological harm or an intolerable situation.
2. If so, it must assess the evidence and determine whether effective protective measures in the requesting state can sufficiently reduce that risk.
3. The assessment concerns the child’s situation on return. Harm directed at the taking parent, exposure to domestic abuse, and separation from a parent or sibling may contribute to the risk.
4. The court must consider the cumulative effect of the risks and the concrete circumstances of return, while respecting the limited nature of the summary process.

A return order was made subject to extensive safeguards and an eight-week period before return.

The father sought the summary return of his two-year-old twins from England to Latvia under the 1980 Hague Convention. The mother resisted under article 13(b), relying on allegations of serious domestic abuse, her psychological vulnerability, the possible impact on the twins, and the potential separation of the twins from their twelve-year-old half-sibling, N.

The parents had litigated related custody and protective-order issues in Latvia. The court considered whether the Latvian decisions created an international issue estoppel, whether the article 13(b) defence was established, and whether protective measures could sufficiently address the risks. The central issue was whether the children could safely be returned for the Latvian courts to determine their long-term future.

1. International issue estoppel. The Latvian proceedings did not establish with sufficient clarity that the mother’s allegations of domestic abuse had been rejected or that future risks to the children had been ruled out. The court therefore declined to treat the Latvian findings as an issue estoppel.
2. Article 13(b) framework. The court applied the two-stage approach identified in Re E. First, the allegations were sufficiently detailed and substantial that, if true, they could constitute a grave risk. Secondly, the court assessed the evidence and the availability and efficacy of protective measures. It was not required to determine finally whether every allegation was true.
3. Nature of the risk. The allegations concerned extreme violence, coercive and controlling behaviour and threats directed at the mother. The children could suffer indirectly through the effect of such conduct on the mother’s ability to function and parent. The risks had to be assessed cumulatively and in concrete terms. The possible temporary separation of N from the twins added to, but did not independently establish, the article 13(b) defence.
4. Protective measures. The court concluded that safeguards could sufficiently ameliorate the risks. These included financial provision, accommodation, restrictions on the father’s contact and whereabouts, protection against intimidation and violence, withdrawal or non-pursuit of criminal allegations connected with the removal, and provision for the return order to be lodged in Latvia.
5. Disposition. The twins were ordered to return to Latvia by 18.00 on 12 December 2022. The order was subject to a stay if the mother obtained an interim Latvian order permitting the twins to remain in England pending a welfare determination. The court stated that, if the risk analysis were wrong, an eight-week suspension would nevertheless have been justified by the exceptional sibling circumstances and the time needed to seek interim relief in Latvia.