Re Y (A Child) (Abduction: Romania: Art. 13(b))

Article 13(b) of the 1980 Hague Convention establishes a high-threshold exception to the prompt return of a wrongfully retained child. Where disputed allegations, if true, could establish a grave risk, the court must assess the concrete circumstances of return and then determine whether protective measures sufficiently address or ameliorate that risk.

Serious domestic abuse directed at a parent may create an indirect grave risk to the child through exposure to violence, even where the child is not himself at direct risk. The court may rely on undertakings and the protective capacity of the requesting State unless their inadequacy is proved. If the risk is sufficiently addressed, the Article 13(b) defence fails and return must be ordered.

The father applied under the 1980 Hague Convention and the Child Abduction and Custody Act 1985 for the return of his four-year-old son to Romania. The mother had taken the child to England and Wales for an authorised holiday but retained him after the permission expired.

The parties accepted that the retention breached the father’s custody rights, that the child was habitually resident in Romania, and that the retention was without consent. The mother relied solely on Article 13(b), alleging a serious history of domestic violence and contending that return would expose the child to physical or psychological harm or an intolerable situation.

The central issue was whether the alleged risks could be sufficiently addressed by protective measures on return.

1. Disposition. The Article 13(b) defence failed. The court ordered the child’s return to Romania, subject to a short period allowing the Romanian court to consider the mother’s pending application to remain in England and Wales.
2. Applicable approach. Article 13(b) has a high threshold. On disputed allegations, the court must first ask whether, if the allegations were true, they could establish a grave risk. It must then examine the concrete situation on return and consider whether protective measures can address or sufficiently ameliorate that risk. The summary nature of Hague proceedings does not prevent an evaluative assessment of written evidence.
3. Risk arising from domestic abuse. The court could not determine the truth of the mother’s allegations at the summary hearing, but it could not reject them merely because there had been little contemporaneous complaint or corroboration. If the allegations of serious violence, threats, rage and suicide attempts were true, the child would face a grave risk of physical or psychological harm or an intolerable situation through witnessing violence against his mother. The risk was indirect; the court found relatively little substance in the allegation that the father posed a direct risk to the child.
4. Protective measures. The father’s undertakings not to use or threaten violence, to stay away from the mother’s and child’s address except for agreed contact, and to comply with further arrangements were sufficient. The court was entitled to assume that Romanian police and other authorities could protect the child unless the contrary was proved. The proposed additional Romanian court order was not shown to be available or to provide substantially greater protection. A payment towards the mother’s accommodation was not a necessary protective measure.
5. The undertakings sufficiently ameliorated the identified risk. The court was therefore required by the Convention to order return forthwith, with implementation deferred until 24 February 2023 and, if necessary, return required by 12 March 2023.