A v B (Abduction: Article 13(b) and Child Objections)

In summary-return proceedings under the 1980 Hague Convention, the Article 13(b) defence requires a forward-looking assessment of the risk on return. The court should first assess the nature and seriousness of the potential risk, taking allegations at their highest but evaluating the evidence reasonably and in the context of summary proceedings. It should then assess concrete protective measures, including measures available in the requesting state. A child’s objection is a factual gateway distinct from a preference or wish. If the gateway is satisfied, the discretion is at large and requires a case-specific balance between Convention policy, welfare considerations, the authenticity and strength of the objection, and other relevant circumstances.

The father applied for the summary return to Spain of four children, aged between four and thirteen, after their mother removed them to England in December 2022. The parties accepted that the children were habitually resident in Spain, that the father was exercising rights of custody, and that the removal was wrongful.

The mother relied on Article 13(b), alleging domestic abuse, risks arising from the father’s care, unsuitable Spanish schooling, inadequate accommodation and lack of financial support. She also relied on the children’s objections to return. The central questions were whether either exception was established and, in relation to the objections defence, whether the gateway conditions were met and how any resulting discretion should be exercised.

1. Article 13(b). The mother failed to establish that return would expose the children to a grave risk of physical or psychological harm or place them in an intolerable situation. The court applied the preferred two-stage analysis: first, identify the nature and level of the potential risk, assuming allegations at their highest where appropriate; secondly, assess whether effective protective measures would address or sufficiently ameliorate it.
2. The risk is necessarily future-looking, but past conduct may be probative. The evidence must still be evaluated in a reasoned and reasonable way consistent with the summary nature of Hague proceedings. Separate allegations should be analysed, while their cumulative effect must not be overlooked.
3. The allegations concerning domestic abuse potentially established a grave risk because renewed parental conflict could expose the children, particularly X, to psychological harm. That risk was sufficiently ameliorated by the parties living separately, the protective remedies available in Spain, the involvement of Spanish social services, the proposed referral and the father’s undertaking concerning his conduct.
4. The allegations of direct abuse or neglect by the father did not meet the threshold. The court could confidently discount an Article 13(b) risk on the evidence. In any event, Spanish social services and the Spanish courts provided relevant protective mechanisms, and the children would not return to the father’s exclusive care.
5. The schooling, accommodation and financial objections did not establish grave risk or intolerability. The children had lived in Spain for many years, had only briefly attended the state schools, had access to educational and special-needs support, and would have accommodation and financial provision on return.
6. Child objections. X and Y did not object to return. Z had not established an objection and, in any event, was too young and developmentally vulnerable for her views to be taken into account at the gateway stage. W’s objection satisfied the gateway, but the discretion was exercised in favour of return. Convention policy, the importance of preserving the sibling unit, W’s relationship with his father, his continuing connections with Spain and the prospect of successful reintegration outweighed his objections.
7. The children were ordered to return to Spain by 7.00 pm on 11 April 2023.

First-instance application for summary return under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention. No earlier judgment in the same proceedings is stated apart from case-management directions.