F v M

In an application under Article 13(b) of the 1980 Hague Convention, the assessment of grave risk is contextual and directed to the situation the individual child would face on return. Protective measures must be considered early and assessed for effectiveness, proportionality, availability, practicality and child focus. Where a conditional return order is made and essential measures are not delivered within a reasonable time, the court may set the order aside. A probable failure to meet the child’s basic needs may constitute a grave risk of an intolerable situation.

The father applied for the summary return of L to Belgium under the 1980 Hague Convention. An earlier return order was made subject to proof that suitable furnished accommodation had been secured for L and his mother, including payment of the deposit and three months’ rent.

The father failed to secure suitable accommodation, produced only an unsuitable bed-sit, did not demonstrate implementation of other proposed protective measures, and failed to attend a crucial hearing. The issues were whether Article 13(b) was established and whether the earlier conditional return order should be set aside.

1. Application dismissed. The return order made on 21 December 2022 was set aside and discharged because the essential accommodation condition had not been fulfilled within a reasonable time.
2. The assessment under Article 13(b) of the 1980 Hague Convention is contextual and forward-looking. The court must consider the situation in which the individual child would be placed if returned. Protective measures must be addressed early and must be forward-looking, effective, proportionate, appropriate and readily available, practical, and focused on the child in concrete terms. The court scrutinises the proposals but does not micro-manage their implementation.
3. The accommodation proposed for L and his mother was an essential protective measure. The father’s failure to secure suitable accommodation, his failure to demonstrate implementation of other measures, and his poor engagement with the proceedings were assessed against the mother’s precarious circumstances in Belgium.
4. The court found it probable that L’s basic needs would not be met and that he would face a grave risk of being placed in an intolerable situation. The assessment concerned the likely situation in Belgium, rather than a comparison with his present circumstances. In Article 13(b), grave characterises both risk and harm, and situation does not require inherent peril.
5. Having established the Article 13(b) exception, the court concluded that return was inappropriate. Under rule 4.1(6) of the Family Procedure Rules 2010, read with PD12F, para 4.1A, the earlier order could be set aside because a fundamental change in circumstances undermined its basis. The reasoning in N v J was adopted.