Re N (Abduction)

Article 13(b) of the 1980 Hague Convention imposes a high threshold. The question is whether return would expose the child to a grave risk of physical or psychological harm or place the child in an intolerable situation. Distress, confusion, disruption, separation from the abducting parent and a change of primary carer may be relevant, but their cumulative effect must reach the required level of seriousness. Where allegations are disputed, the court must assess the concrete situation on return and consider whether protective measures are required. A risk of the abducting parent’s arrest for child abduction will not ordinarily establish the defence by itself. The court may decline to make interim arrangements for a child’s care where the requesting state’s courts are actively seised of the family proceedings and are better placed to determine welfare and abduction risks.

The mother applied for the summary return of her daughter, aged almost three, to Country A under the 1980 Hague Convention. The father accepted that he had wrongfully removed the child during supervised contact and brought her to England. He relied on Article 13(b), alleging that return would cause grave psychological or physical harm or place the child in an intolerable situation. He relied on the proposed change from his sole care to the mother’s care, the child’s recent disruption, alleged domestic abuse and carelessness, the risk of separation from him, his possible arrest, and the mother’s refusal to agree to his return with the child pending a hearing in Country A.

The mother disputed the alleged risks and offered an undertaking not to promote any prosecution. The central issues were whether the Article 13(b) threshold was met and whether interim arrangements were required to secure a soft landing.

1. Return order. The application succeeded. The child was ordered to be delivered to the mother by 4 pm on 12 December 2022 for return to Country A.
2. Article 13(b) test. Applying the principles summarised in Re IG (Child Abduction: Habitual Residence: Article 13b) [2021] EWCA Civ 1123, the judge assessed the concrete situation on return. The court had to consider the allegations on the assumption that they were true where appropriate, determine whether they could establish a grave risk, and then consider whether the risk could be addressed or ameliorated by protective measures.
3. The incidents involving the child swallowing a stone, falling from a bed and striking her head were not sufficiently serious or detailed, either individually or cumulatively, to establish grave risk. The child’s likely distress and confusion from moving to Country A, changing nursery and language environment, and losing in-person contact with her father for a period did not reach the required threshold. The mother was known to the child, had cared for her alone before, and the Country A court was already seised of the family proceedings.
4. The alleged risk of the father’s arrest for child abduction did not itself establish an Article 13(b) defence. The mother’s undertaking was accepted, although protective measures were unnecessary because no Article 13(b) risk had been established.
5. Soft landing. The court declined to order that the child remain with the father pending the next hearing in Country A. Although Article 11 of the 1996 Hague Convention provided a power to make interim child-arrangements orders, the Country A courts had made several orders, including placing the child in the mother’s custody. It would not be appropriate to override that decision in advance of the next hearing. The risk of a further abduction also favoured return to the mother’s care, and the courts of Country A were best placed to assess future abduction risks and protective arrangements.