AB v CD

In summary return proceedings under the Child Abduction and Custody Act 1985, a child’s return should ordinarily be ordered where wrongful removal and habitual residence are established, unless a Convention defence is made out. An investigation into alleged abuse does not itself create a grave risk under Article 13(b); the court must assess the situation on return, including available protective measures and the role of the courts in the child’s home country. A preference to remain in the requested state is not necessarily an objection to return. The court must focus primarily on the risk of harm or intolerability to the child, even where the abducting parent says that they will not return.

The Father applied for the summary return of his seven-year-old daughter to Portugal under the 1980 Hague Convention. The Mother had moved the child to England without the Father’s consent or an order from the Portuguese court. It was accepted that the child had been habitually resident in Portugal and that the removal breached the Father’s custody or access rights.

The Mother relied on Article 13 defences based on the child’s alleged objection to return and grave risk of physical or psychological harm or an intolerable situation. The evidence also raised allegations of sexual abuse by the Father, which remained to be investigated. The central issues were whether either defence was established and what arrangements should govern the child’s return.

1. Return order. The child was habitually resident in Portugal immediately before her removal, and the removal breached the Father’s custody or access rights. Article 12 therefore imposed a duty to order her return unless an Article 13 defence was established.
2. Child objections. The child expressed a preference to remain in England with her Mother but did not object to returning to Portugal. A preference is materially different from an objection, which requires a substantially stronger feeling. In any event, the child’s age and maturity meant that her views would have carried limited weight.
3. Article 13(b). The court considered the alleged risks at their highest on the available evidence. The existence of a Portuguese police investigation did not itself create a grave risk; it provided an additional safeguard. Any future contact with the Father would be for the Portuguese court to determine following a welfare assessment and subject to appropriate protective conditions.
4. The Mother was more likely than not to return to Portugal with the child. The court nevertheless considered the alternative position that she might refuse to return. The focus remained on the child’s prospective situation, not solely on the Mother’s conduct. Possible arrangements included care by the maternal grandmother, arrangements directed by the Portuguese court, or, as a last resort, foster care pending a welfare decision. None made the child’s situation intolerable.
5. The Article 13 defences were rejected. A return order was made, with implementation adjourned to determine practical and protective arrangements, including possible orders under Article 11 of the 1996 Hague Convention. The court retained limited control over implementation and could reopen the return question only if no arrangement consistent with the child’s reasonable safety could be achieved.