XK v JY

Article 13(b) requires a two-stage assessment. The court must first decide whether the alleged circumstances create a grave risk of harm or an intolerable situation for the child on return. It must then examine whether effective protective measures in the State of habitual residence sufficiently address that risk. The summary nature of the process does not remove the need for evaluative assessment. Protective undertakings require careful scrutiny, including their likely compliance and enforcement consequences. Equivalent protective capacity in the requesting State is presumed unless compelling evidence establishes otherwise.

The father sought the summary return of his five-year-old son to Slovakia under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The mother had removed the child from Slovakia to England and relied on Article 13(b), alleging repeated domestic violence and abuse by the father, including incidents witnessed or potentially perceived by the child.

The parties agreed that the father held and exercised rights of custody, that the child was habitually resident in Slovakia, and that the removal and retention were wrongful. The issues were whether a grave risk had been established and whether protective measures and undertakings sufficiently addressed it.

1. Article 13(b). The court adopted the sequential approach: first assess whether the allegations, considered within the summary process, would establish grave risk; then assess how the child could be protected from that risk. The court was not conducting a fact-finding hearing, but was required to undertake an evaluative assessment.
2. Risk. The allegations of repeated physical violence were sufficiently detailed and persuasive to establish a grave risk of psychological harm if the child were returned to an environment in which he might again witness domestic violence. The evidence did not establish a separate grave risk arising from the mother’s possible inability to care for him because of her mental health. The financial-abuse allegations, considered separately, did not establish grave risk.
3. Protection. The court examined the father’s undertakings and evidence from the Slovak Central Authority. Slovak law provided urgent protective orders, restrictions on access, contact and proximity, recognition and enforcement of safeguarding orders, enforcement mechanisms and appeal processes. Those measures were at a high level and congruent with protection available in England.
4. Disposition. The undertakings and Slovak protective measures were more than sufficient to address the grave risk. The child’s immigration position and the mother’s possible lack of legal representation did not alter the conclusion. Decisions concerning future residence, including relocation, were for the Slovak court. Summary return to Slovakia was ordered.