C v M

In Hague Convention child-abduction proceedings, the Article 13(b) exception requires assessment of contested allegations at their highest, the future situation on return, and the efficacy of proposed protective measures. Serious allegations do not themselves establish grave risk where effective, enforceable measures can ameliorate the risk.

A child’s objection is a low-threshold gateway issue. It must be distinguished from a mere preference, but it does not determine the outcome. Once the gateway is crossed, the court has a broad discretion, taking account of the child’s views, welfare, Convention policy and practical arrangements on return.

The father applied under the 1980 Hague Convention for the return of two children, aged 11 and five, to Mauritius after their removal to England. The mother accepted that the children had been habitually resident in Mauritius and had been wrongfully removed. She relied on the Article 13(b) defences of grave risk of harm and intolerability, and on the older child’s objection under Article 13(2).

The court considered disputed allegations of financial unreliability and domestic abuse, the older child’s wishes and maturity, evidence concerning enforceability of protective measures in Mauritius, and the arrangements proposed by the father.

1. Return ordered. The children were ordered to return to Mauritius, subject to specified protective arrangements and a date agreed by the parties or determined by the court.
2. Under Article 13(b), the court considered disputed allegations at their highest, assessed the situation on return, and evaluated the complete package of protective measures. Historical financial concerns did not establish grave risk because the proposed financial arrangements ameliorated the identified risk. The domestic-abuse allegations were serious and, if true, were likely to have caused psychological harm. Nevertheless, the children would remain with the mother, in separate accommodation, without contact with the father unless agreed or ordered by the Mauritian court. The measures would be enforceable through an exequatur order. The defence therefore failed.
3. The older child was of sufficient age and maturity for her views to be considered. Her evidence crossed the threshold for an objection to return, although her objection was closely connected with opposition to contact with her father. The objection engaged a discretion rather than determining the application.
4. The discretion was exercised in favour of return. The objection was not regarded as strong, the child identified positive aspects of Mauritius, the proposed measures addressed accommodation, schooling, finances and contact, and the children had lived and attended school there for three years. Convention policy against unilateral removal also weighed materially in favour of return. Longer-term welfare and relocation questions were for the Mauritian court.
5. Before return, six months’ maintenance at £400 per month, health insurance, enforceable undertakings through a joint exequatur application, and suitable rental accommodation were to be arranged.