RS v AM

Article 13(b) of the Hague Convention 1980 is a narrowly framed defence with a high threshold. The court must assess the future situation on return, focusing on the particular child and the concrete risk alleged. Where domestic abuse is relied upon, the court should ask whether the allegations, if true, establish a grave risk and, if so, whether effective protective measures can adequately address it.

Past abuse may be probative of future risk, although it does not automatically establish that protective measures will be ineffective. The court must assess the reliability, enforceability and practical operation of proposed safeguards. A child’s objection is a factual gateway distinct from a preference. If established, it gives rise to a broad discretion in which the child’s views, welfare and Convention considerations are weighed.

The father sought the summary return of his nine-year-old daughter to Poland under the Child Abduction and Custody Act 1985 and the Hague Convention 1980, following the mother’s admitted wrongful removal of the child to England.

The first-instance application had been refused by Arbuthnot J in May 2021. The father successfully appealed, and the Court of Appeal allowed the appeal on 10 September 2021 in Re C (A Child) (Abduction: Article 13(b)), [2021] EWCA Civ 1354. The matter was reheard with evidence addressing alleged domestic abuse, the availability of protective measures in Poland, and the child’s objections to return.

The central issues were whether return would expose the child to a grave risk of harm or an intolerable situation, and whether she objected to return at an age and level of maturity at which her views should be taken into account.

1. Article 13(b). The exception has restricted application and a high threshold. The focus is the child and the situation that would arise on an immediate return. The burden lies on the person opposing return, on the ordinary balance of probabilities subject to the summary nature of the Convention process. [2021] EWCA Civ 939 and [2021] EWCA Civ 1123 were used in conjunction with the principles in Re E, [2011] UKSC 27.
2. Where domestic abuse is alleged, the court must first consider whether the allegations, if true, would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation. It must then consider how the child can be protected. Past incidents may be relevant to future risk, but are not automatically determinative of the availability of effective protective measures.
3. The evidence established a grave risk if the allegations were true or substantially true. The proposed safeguards were insufficient. In particular, the evidence concerning their enforceability in Poland, the slow criminal investigation, and the father’s threats and lack of insight meant that the court could not trust him to comply with restrictions. The Article 13(b) exception was therefore made out.
4. The child also genuinely and authentically objected to return. The gateway question is whether there is an objection, rather than merely a preference or wish, and whether the child has attained an appropriate age and degree of maturity. If satisfied, the gateway creates a broad discretion. The child’s views are one factor, alongside welfare and Convention considerations.
5. The Article 13(b) finding effectively disposed of the application and left no meaningful discretion concerning return. In any event, if discretion had arisen only from the child’s objections, the court would still have refused return, having regard to her settled life in England, the likely artificial conditions of a return, her fear of the father, and the probable adverse effect on the mother’s ability to care for her.
6. The father’s application was refused. Ancillary injunctions made at interlocutory stages were dismissed, and provision was made for translation of the judgment for the Polish welfare proceedings.

• Court of Appeal: The father appealed the refusal by Arbuthnot J. The appeal was allowed on 10 September 2021 in Re C (A Child) (Abduction: Article 13(b)), [2021] EWCA Civ 1354, and the matter was reheard.
• High Court (Family Division): The rehearing resulted in refusal of the father’s application for summary return.