SKJ v SLJ

In an application under the Hague Convention 1980, the Article 13(b) exception may be established by the effect of a return on the retaining parent’s mental health where that effect would create an intolerable situation for the child. The parent’s anxieties need not be objectively reasonable, although the court must assess the evidence critically and consider the circumstances as they would be on return.

The assessment is forward-looking. It must address available protective measures in concrete terms, including their likely effectiveness. On the particular evidence, the children’s return to Texas would have been intolerable because of the likely deterioration in the mother’s mental health and consequent impact on her parenting.

The father applied under Articles 3 and 12 of the Hague Convention 1980 for the summary return of the parties’ two children from England to Texas. The mother accepted that the children were habitually resident in Texas, that she had wrongfully retained them, and that the father held rights of custody.

She relied on Article 13(2), Article 13(b) and Article 20. The Article 13(b) case concerned the likely effect of return on her longstanding mental-health difficulties and the resulting effect on the children. The central issues were whether the children objected to return, whether return would expose them to an intolerable situation, whether protective measures could address that risk, and whether Texas provided a relocation jurisdiction.

1. Article 20. The mother did not establish that Texas lacked jurisdiction to determine an application to relocate the children outside the United States. The expert evidence identified a procedure under the Texas Family Code enabling an application concerning the children’s primary residence and geographic restriction. The possibility that the mother’s prior abduction might adversely affect that application did not remove the jurisdiction.
2. Article 13(2). The children were sufficiently mature for their views to be considered, but the evidence did not establish that either child objected to returning to Texas. Their preferences and troubling experiences of family life were not the same as an objection within Article 13(2).
3. Article 13(b). The court applied the principles in Re E (Children) (Abduction: Custody Appeal) and Re S (A Child) (Abduction: Rights of Custody). A grave risk may arise from the returning parent’s subjective anxieties, even where those anxieties lack objective justification, if their effect on the parent would make the child’s situation intolerable. The court must nevertheless evaluate the evidence in the context of the summary Convention process and assess the future situation on return.
4. The mother had a documented history of serious mental-health difficulties, including serious suicide attempts associated with her wish to be in, or not to be in, a particular country. The jointly instructed psychologist’s evidence established a real risk of deterioration on return, affecting her ability to parent. In the particular circumstances, that risk made return intolerable for the children.
5. The court accepted the guidance concerning protective measures, including the need to examine concretely the situation on return and the likely effectiveness of proposed measures. Given the psychologist’s evidence about the mother’s subjective response to stress, it was unnecessary to resolve every alleged deficiency in the proposed measures. The Article 13(b) defence was established and the court exercised its discretion not to order return.
6. The stayed proceedings in the Medway Family Court were to be revived. The court gave a preliminary view that the evidence in the return proceedings should be made available there.