Re L (Article 13: Protective Measures) (No 1)

Article 13(b) of the 1980 Hague Convention is a narrowly confined exception. The court must assess the future situation on return and focus on the risk to the child, rather than determine disputed allegations finally. Where domestic abuse or other risks are alleged, the court must consider whether the asserted facts would create a grave risk and, if so, whether effective protective measures can address it.

Protective measures may include undertakings, accommodation, financial support, access to benefits, early proceedings in the state of habitual residence and measures ordinarily available there. The possibility of prosecution for child abduction does not automatically create a grave risk to the child. A return order may be made conditional on specified measures being implemented.

The father applied under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the summary return of his 16-month-old child from England to Belgium. The child had been habitually resident in Belgium and the father was exercising rights of custody.

The mother initially relied on alleged consent, but abandoned that defence. She then relied on Article 13(b), alleging domestic abuse, inadequate accommodation and finances, possible prosecution in Belgium, the risk of losing day-to-day care and the possibility that she would not return with the child.

The central issue was whether return would expose the child to a grave risk of physical or psychological harm or place him in an intolerable situation, and whether protective measures could sufficiently address any risk.

1. Article 13(b) principles. The defence has a high threshold and restricted application. The mother bore the burden on the ordinary balance of probabilities, subject to the summary nature of the Convention process. The assessment concerned the child, the future situation on return and the nature and degree of the asserted risk. The court was not required to conduct a final fact-finding exercise.
2. Risk and protection. In a case involving alleged domestic abuse, the court should first ask whether the allegations, if true, would create a grave risk. If so, it should consider how the child can be protected. The assessment must be concrete and contextual. Past incidents may be probative, but they are not determinative of whether effective protective measures are available.
3. Application. The evidence did not establish that return to Belgium would expose the child to a grave risk. The parents would not live together. The father offered enforceable undertakings concerning his conduct, non-separation, accommodation, financial support and early proceedings. Adequate furnished accommodation, benefits and access to Belgian proceedings could address the practical risks. The possibility of the mother’s prosecution did not automatically create a grave risk to the child, and the evidence did not establish that she would be arrested on arrival.
4. The court found that the mother was likely to return with the child. The inconvenience, anxiety and uncertainty of return did not approach the Article 13(b) threshold.
5. Disposition. The father’s application for summary return was granted. Return was conditional on proof of suitable furnished accommodation with the deposit and three months’ rent paid, signed confirmation of the protective measures, and payment of an appropriate sum towards the mother’s and child’s living expenses. The matter was to be reviewed in January 2023 if practical issues arose.