Re: S (A Child)

When determining the article 13(b) exception to summary return, the court must assess the alleged risks cumulatively. The gravity of a risk depends both on its likelihood and on the seriousness of the potential harm.

Protective measures defeat the exception only where the evidence establishes that they would sufficiently ameliorate the grave risk. A mere possibility that they might do so leaves the risk in place. The jurisdiction requires a summary decision on the evidence at the hearing. It is not a continuing or “wait and see” jurisdiction.

The mother appealed against an unreported order of Arbuthnot J requiring the summary return of her six-year-old child from England to Australia under the 1980 Hague Child Abduction Convention. The mother had chronic mental-health difficulties and relied solely on the exception in article 13(b). Her older child, who was not subject to the proceedings, was to remain in England.

The judge found that, without protective measures, deterioration in the mother’s mental health would create a grave risk of psychological harm or an intolerable situation for the younger child. She nevertheless ordered return because proposed safeguards were considered sufficient. The central issue was whether that conclusion properly reflected the psychiatric evidence and the cumulative risks.

1. Appeal allowed. The order for summary return was set aside and the father’s application under the 1980 Hague Child Abduction Convention was dismissed.

2. The article 13(b) assessment concerns both the likelihood of the identified risk and the nature of the harm should it occur. The first-instance judge had correctly found that, without protective measures, deterioration in the mother’s mental health would create a grave risk of psychological harm to the child or place him in an intolerable situation.

3. The risks had to be assessed cumulatively. The judge considered the matters relied upon sequentially and did not combine the likely deterioration in the mother’s mental health with the established consequence that the child would be separated from his sibling. Separation alone did not establish article 13(b), but it provided additional support for the existence of a grave risk.

4. The judge did not sufficiently engage with the psychiatrist’s evidence that the mother’s mental health had to stabilise before any return. The proposed measures did not address pre-return stabilisation. Nor did the evidence establish that they would prevent a serious deterioration. They were intended only to try to prevent deterioration to the extent previously experienced, and their effectiveness could not be predicted.

5. Protective measures must be shown to reduce or sufficiently ameliorate the identified grave risk. Evidence that they might or might not do so is insufficient. The evidence therefore did not support the finding that professional support, medication, insurance, accommodation and other undertakings would ensure that the child avoided grave harm.

6. The proceedings could not be adjourned pending stabilisation. The Convention requires a summary decision on the evidence existing at the hearing and does not confer a continuing, “wait and see” jurisdiction. The timing of any improvement was also impossible to predict.

7. Although establishing article 13(b) gives the court a discretion, there was no justification for exercising it by ordering return. The grave risk remained and the summary return application was refused.

1. Court of Appeal (Civil Division): By [2023] EWCA Civ 208, unanimously allowed the mother’s appeal, set aside the summary return order and dismissed the father’s application.
2. High Court, Family Division: Arbuthnot J made an unreported order for the child’s summary return to Australia, subject to undertakings and protective measures.