Re K & S (Article 13(b))

Article 13(b) of the 1980 Hague Convention is a narrowly confined exception. The court must focus on the future situation of the child on return and ask whether there would be a grave risk of physical or psychological harm, or an intolerable situation.

Where domestic abuse is alleged, the court should first consider whether the allegations, if true, would establish the required risk. It must then assess whether effective protective measures, including measures available in the state of habitual residence, sufficiently address that risk. Past abuse may be probative, but is not determinative. The assessment is contextual and does not require a full fact-finding exercise.

The father applied under the 1980 Hague Convention for the summary return of two children, habitually resident in the United States, after their mother retained them in England. The mother accepted that the retention breached the father’s custody rights but relied on Article 13(b).

She alleged domestic abuse, psychological vulnerability and neglect of the children. She contended that returning with the children to the United States would expose them to grave risk or place them in an intolerable situation. The father offered extensive protective measures, including separate accommodation, financial support, transport, medical insurance and therapeutic assistance.

The central issues were whether the Article 13(b) exception was established and, if so, whether protective measures or discretionary considerations affected the return order.

1. Article 13(b) threshold. The mother bore the burden of establishing the exception on the ordinary balance of probabilities, subject to the summary nature of the Hague Convention process. The risk had to be focused on the children and had to be grave. An intolerable situation meant one which the particular children, in their particular circumstances, should not be expected to tolerate.
2. Assessment of risk. The court had to examine the situation prospectively, namely the circumstances in which the children would be returned forthwith to the United States. Allegations of past domestic abuse were relevant to the assessment, but did not by themselves establish that effective protective measures were unavailable.
3. Protective measures. If the allegations were true, returning the children to the same situation could create a grave risk. The court therefore assessed the father’s undertakings, protections potentially available through the United States courts, and support from the mother’s family. The measures materially reduced the risk from domestic abuse, to the point that any remaining risk was negligible.
4. Maternal anxiety. The court accepted that the mother had anxiety associated with post-traumatic stress and depression, and that her anxiety about returning was realistically held. However, the evidence did not establish that her mental state would destabilise her parenting so severely that the children’s situation would become intolerable or cause them psychological harm. Separate housing, financial independence, support services and therapy were sufficient to alleviate her anxiety to a meaningful extent.
5. Alleged neglect and discretion. The alleged neglect did not establish grave risk. There was no evidence of developmental delay in the relevant earlier assessment. The court declined to defer the return to permit relocation proceedings in Virginia: AO v LA did not establish such a principle and was materially different on its facts.
6. The father’s application for summary return was granted. The children were to return to the United States within 21 days. The mother’s undertakings were accepted.

This was a first-instance application in the High Court Family Division. The judgment records that permission to appeal an earlier case-management decision concerning expert evidence was refused, including on renewal in the Court of Appeal, but that decision was not under appeal in this application.