A Father v A Mother & Ors

Under the 1980 Hague Convention, a return order is not required where the opposing party establishes a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation. The court must evaluate the available evidence in the summary proceedings, assume the risk at its properly assessed maximum, and then consider whether effective protective measures are available. Foreign findings and orders must be recognised, but they do not prevent the court from considering later evidence and changed circumstances. A child’s objections form a low-threshold gateway. Their weight is considered at the discretionary stage, together with welfare and Convention considerations. Return remains discretionary even where an exception is established, but return despite an established Article 13(b) risk will be rare.

The father sought the summary return of two children to Lithuania under the 1980 Hague Convention. The mother accepted that she had wrongfully removed them from Lithuania, where they had been habitually resident, but relied on the Article 13(b) grave-risk exception and the children’s objections.

The Lithuanian courts had made findings adverse to the mother and had ordered that the children live with the father, although that order was suspended pending appeal. The children had since settled in England, had not seen their father for over 18 months, and the mother made serious allegations of domestic and sexual abuse which had not been raised or investigated in Lithuania. The central questions concerned the effect of the Lithuanian findings, the assessment of risk, the adequacy of protective measures, the children’s objections and the exercise of discretion.

1. Foreign findings. The Lithuanian decisions and findings were recognised and treated as part of the whole picture. They were not reopened. However, the court was required to evaluate all the evidence before it, including evidence arising after the Lithuanian judgment. The Hague return proceedings did not determine the children’s long-term welfare.
2. Article 13(b). Applying the approach in In re E and MB v TB, the court assessed the available evidence and formed a reasoned and reasonable assumption about the maximum level of risk. It was unnecessary to determine the truth of every allegation in the summary proceedings. The evidence established a grave risk of physical and psychological harm and an intolerable situation on return. The risks included physical chastisement by the father, the mother’s fear of violence and coercion, deterioration in her mental health, and consequent impairment of her ability to care for the children.
3. Protective measures. The father’s proposed undertakings and reliance on the Lithuanian authorities did not provide sufficient protection. His position contemplated seeking the children’s transfer to his care and did not provide a gradual reintroduction or a soft landing. The court could not assume that the Lithuanian authorities would scrutinise the later evidence in time to prevent the identified risks.
4. Children’s objections. V objected to return and had sufficient age and maturity for his views to be considered. W’s wishes were not established as an objection of sufficient maturity. Applying Re M, Re M (Republic of Ireland) and Re F, V’s objection did not independently justify refusal because the mother’s influence meant that its authenticity could not be established.
5. Discretion and outcome. The court declined to order return despite the Convention’s purposes. Return notwithstanding an established Article 13(b) exception would be rare, and no sufficient reason existed to exercise the discretion in favour of return. The father’s application was dismissed.