A (Minors), Re

In a summary return application under the Hague Convention 1980, an Article 13(b) defence has restricted application. The respondent bears the ordinary balance-of-probabilities burden, but the court assesses allegations of domestic abuse at their highest where appropriate. It must then decide whether the asserted circumstances would create a grave risk of physical or psychological harm or an intolerable situation for the child if returned forthwith. If so, the court must examine whether effective and proportionate protective measures can address the risk. The courts and authorities of the requesting State are generally presumed capable of protecting the child unless the contrary is proved.

The father applied for the summary return of A, born and habitually resident in Ireland, after the mother removed A to England without his consent. The parents had separated, and proceedings and contact orders were already in place in Ireland. The mother opposed return under Article 13(1)(b), relying on allegations of domestic abuse, coercive control and the effect of those matters on her ability to care for A. The central issue was whether return would expose A to a grave risk of harm or an intolerable situation, and whether protective measures could sufficiently address that risk.

1. Return ordered. The application was granted and A was to be returned to Ireland by 11.59 pm on 6 December 2023.
2. The court accepted the mother’s allegations at their highest. Her account of coercive control, abuse and cultural pressure was not devoid of credibility. On that assumed basis, there was a grave risk of psychological harm to A through the impact on the mother and a likely consequential effect on her ability to care for him. A would also face a grave risk of being placed in an intolerable situation.
3. The Article 13(b) exception is narrowly confined. The burden lies on the party opposing return, on the ordinary balance of probabilities. The summary nature of the procedure does not prevent an evaluative assessment of the credibility or substance of allegations, although it will rarely be appropriate to conduct a full fact-finding hearing.
4. The court then considered whether effective protective measures could address the identified risks. It held that they could. The father gave extensive undertakings, including not to contact or harass the mother, not to attend places where she or A might be found, not to seek their address, to fund their return travel, to maintain payments and to make a further maintenance payment.
5. The Irish courts were well placed to regulate the father’s conduct, determine contact and address the mother’s residence and welfare. Ireland was the child’s home jurisdiction, proceedings were already continuing there, and its authorities were presumed capable of providing protection. The policy of securing the prompt return of wrongfully removed children was also important.