UG v NN

In an application under the 1980 Hague Convention, rights of custody must first be identified under the law of the children’s habitual residence and then assessed against the Convention’s autonomous meaning of custody rights. A removal is wrongful where it breaches those rights and the required consent or protective procedural steps were absent. The Article 13(b) exception has a high threshold. The court must first ask whether the allegations, if true, could establish a grave risk or intolerable situation, then evaluate the evidence and consider whether effective protective measures can address the risk. General concerns about comparative parental care, historic misconduct and the practical consequences of return will not suffice without sufficiently detailed and substantial evidence of a Convention-level risk.

The mother applied for the return of three children to Austria under the 1980 Hague Convention. The children had lived principally with their father in Austria following the parents’ divorce, but had regular contact with their mother. The father moved to the United Kingdom with the children without obtaining the mother’s consent.

The issues were whether the removal breached the mother’s rights of custody under Austrian law and, if so, whether the father established the Article 13(b) defence based on alleged risks arising from the children’s return and his proposed non-return to Austria.

1. Rights of custody and wrongful removal. The court adopted the two-stage approach identified in BK v NK [2016] EWHC 2496 (Fam): first determine the position created by the law of the state of habitual residence; then determine whether that position amounts to Convention rights of custody. The Austrian evidence established that, although the father was the domiciliary parent, he had to seek the mother’s consent or comply with specified procedural safeguards before removing the children.
2. The mother had not consented. The father gave insufficient notice, did not inform her in time to enable her to apply to the Austrian court, and had not shown that notification was impossible or impracticable. The removal therefore breached her rights of custody and was wrongful under Article 3.
3. Article 13(b). The court applied the principles summarised in Re IG (Child Abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123. The allegations had to be sufficiently detailed and substantial that, if true, they could constitute a grave risk. The court then had to evaluate the evidence and consider whether the risk could be addressed by protective measures.
4. The father’s allegations concerning the mother’s drinking, emotional instability and care of the children did not meet that threshold. The evidence was principally historic, there were no recent examples of harm during the mother’s regular contact, and the children were returning to a familiar environment. Separation from the father, who was their primary carer, was not itself sufficient to establish grave psychological harm or an intolerable situation.
5. The mother’s undertakings were accepted, although protective measures were not necessary to justify the return order. The court declined to delay return pending a possible Austrian welfare hearing. The circumstances differed from those in C v B [2021] EWHC 1369 (Fam). The children were ordered to return to Austria by 6 January 2022.