T v L (1980 Hague Abduction Convention: Article 13b: Evaluating Evidence of Risk)

In an application for summary return under Article 13(b) of the 1980 Hague Child Abduction Convention, the court should ordinarily ask whether the allegations, taken at their highest, could establish a grave risk, and then whether protective measures could effectively reduce that risk below the threshold.

The court may confidently discount allegations where the evidence clearly shows that they lack substance and detail or rests on unreasoned and unreasonable assumptions. It should avoid an intermediate form of summary fact-finding which neither takes the allegations at their highest nor confidently discounts them. Where the risk cannot be discounted, the court must evaluate its nature and extent and the practical effectiveness of protective measures.

The father removed the parties’ three children from Israel to England in February 2023. The mother commenced proceedings under the 1980 Hague Child Abduction Convention, asserting that the children had been habitually resident in Israel and had been wrongfully removed.

The father did not pursue habitual residence or the children’s objections. He relied on Article 13(b), alleging a grave risk of sexual abuse or an intolerable situation if the children returned to Israel and contending that protective measures would be ineffective. The mother disputed the allegations but offered undertakings, including restrictions on the maternal grandfather’s and uncles’ contact and lodging the undertakings with the family court in Jerusalem.

The central issues were how the evidence of risk should be evaluated summarily and whether the proposed protective framework would reduce any Article 13(b) risk below the Convention threshold.

1. Article 13(b) framework. The father bore the burden of establishing a grave risk that return would expose the children to physical or psychological harm or otherwise place them in an intolerable situation. The source of the risk could be any person or circumstance. The court had to consider whether protective measures would ameliorate or negate the risk in a concrete and effective way.
2. Evaluation of evidence. The usual starting point from Re E was to ask whether the allegations, taken at their highest, would cross the Article 13(b) threshold. If so, the court had to ask how the children could be protected. The court could instead conclude on the papers that no grave risk existed, or confidently discount the allegations where they were clearly without substance. It had to exercise caution and should not reject allegations merely because their validity or cogency was doubtful.
3. The court rejected a rigid binary approach in which allegations either passed the reasoned-and-reasonable-assumptions test or were confidently discounted. Where the evidence occupied an uncertain middle ground, the court should avoid summary fact-finding which fell between those approaches. It should proceed on the basis that a risk existed, evaluate its nature and extent, and assess the degree and form of protection required. The clearer the need for protection, the more effective the measures had to be.
4. The allegations were sufficiently serious that, if true, they would establish grave risk, but they were weakly evidenced. The father’s conduct substantially reduced the level of risk which could be inferred, although the allegations could not confidently be discounted. The mother was trusted to comply with undertakings limiting the grandfather’s contact and personal care of the children. Lodging those undertakings with the family court in Jerusalem, together with the existence of related Israeli proceedings, gave them additional practical force.
5. The protective package reduced the risk below the Article 13(b) threshold. The court ordered the children’s return to Israel not before 28 April 2023.