C v R

In a Hague Convention return application, Article 13(b) requires a forward-looking assessment of the child’s likely situation on return. The court must evaluate the evidence on the balance of probabilities within the summary process and consider whether effective protective measures would address any grave risk. A court may confidently discount an alleged risk without undertaking a further protective-measures analysis. Practical arrangements for return may be relevant, but they should not displace the central inquiry into the child’s safety after return. Comparisons between living standards are ordinarily irrelevant. The assessment must address the particular child’s likely real-world circumstances rather than hypothetical or abstract scenarios.

The father sought the summary return of his four-year-old daughter from England and Wales to Hong Kong under the Child Abduction and Custody Act 1985 and the Hague Convention 1980. A Hong Kong court had declared the removal and retention wrongful. The mother accepted that declaration but resisted return under Article 13(b), relying on her depression, possible separation from her other children and family, financial difficulties, accommodation, the father’s conduct, and the logistics of return.

The central issue was whether return would expose the child to a grave risk of physical or psychological harm or place her in an intolerable situation, and whether the father’s proposed protective measures sufficiently addressed any such risk.

1. Application granted. The court made a summary return order for the child to Hong Kong under the Child Abduction and Custody Act 1985.
2. The court applied the approach stated in Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144. The evidence was assessed on the ordinary balance of probabilities, but the summary nature of the process meant that the court should not generally conduct a full fact-finding exercise. Where appropriate, the asserted risk should be assumed at its highest before considering whether it reaches the Article 13(b) threshold and whether protective measures can mitigate it.
3. Following Re K (Hague Convention: Lithuania) [2015] EWCA Civ 72, the court was not required to proceed to protective measures where the evidence enabled it confidently to discount the possibility that the allegations created an Article 13(b) risk. The mother’s mental-health difficulties would not create grave harm or an intolerable situation for the child. Appropriate psychiatric treatment, medication and cognitive behavioural therapy were available in Hong Kong.
4. The court considered the likely real-world circumstances of return. It rejected hypothetical scenarios, including the child returning alone or permanent separation from the mother’s other children. The family was likely to return together, or any separation would be brief. The father’s undertakings and financial package, together with likely benefits and employment, were sufficient to address the identified risks.
5. Practical arrangements for return were distinct from protective measures addressing post-return harm. Applying the distinction in Z v D [2020] EWHC 1857 (Fam), the mechanics and cost of transporting other family members should not become the focus of the Article 13(b) analysis or undermine the Convention’s purpose.
6. Differences in living standards did not establish grave risk. The proposed accommodation and financial circumstances would not expose the child to Article 13(b) harm.