Re CC (a child: Article 13(b), Hague Convention 1980)

Article 13(b) of the Hague Convention 1980 is an exception to the general duty to return a wrongfully removed or retained child promptly to the State of habitual residence. The opposing parent bears the civil burden of proving a grave risk of physical or psychological harm, or an intolerable situation. The court must evaluate the evidence in the summary context, while considering the concrete circumstances on return and available protective measures. A carer’s anxiety may be relevant where its impact would make the child’s situation intolerable, but the focus remains on the child. The court must avoid deciding long-term welfare or custody issues. On the evidence, a manageable deterioration in the mother’s adjustment disorder, together with available accommodation, family support, medical care and undertakings, did not meet the Article 13(b) threshold.

The father sought the summary return of CC, aged four, to South Africa under the Child Abduction and Custody Act 1985, incorporating the Hague Convention 1980. CC had lived in South Africa from shortly after birth until the mother brought him to England for what the father understood to be a short holiday and then retained him here. The mother abandoned all objections except Article 13(b), relying principally on her mental health, lack of accommodation and support, and the effect of return on CC.

The court considered whether return would expose CC to grave physical or psychological harm or place him in an intolerable situation.

1. Disposition. The Article 13(b) defence was dismissed. The court ordered CC’s summary return to South Africa forthwith.
2. The mother bore the burden of proving the exemption on the balance of probabilities. The court treated the three Article 13(b) limbs as alternative bases: grave physical harm, grave psychological harm, and an intolerable situation.
3. The proceedings were summary. The court had to do its best on the available evidence, without conducting a conventional welfare or long-term custody analysis. The relevant question was whether return was unsafe, not which country offered the better future. The focus remained on CC, although the effect of return on his primary carer could be considered where it might affect his care and circumstances.
4. The court was required to evaluate the totality of the evidence, including the uncontested psychiatric evidence. It was not required to accept allegations at their highest where the evidence enabled it confidently to discount the asserted risk. Protective measures included undertakings, accommodation, medical provision, access to the courts of the requesting state and other state services.
5. There was no evidential foundation for grave physical harm. The mother’s adjustment disorder was expected to produce, at most, a slight worsening of mood and anxiety in the mild-to-moderate range. It was not a severe or enduring disorder, was manageable by a general practitioner in South Africa, and was not materially different from the reaction expected in a person without her psychiatric history. The evidence therefore did not establish grave psychological harm to CC.
6. The mother’s subjective anxieties did not make CC’s situation intolerable. The court considered the father’s undertakings, three months’ accommodation, maintenance, family support, access to South African courts, medical insurance for CC and the availability of care and schooling. The matters relied upon, individually or cumulatively, fell well short of the Convention threshold.
7. The father’s rights of custody and the quality of his relationship with CC were not matters for investigation except insofar as relevant to Article 13(b). Any substantive custody or welfare dispute was for the South African courts.