AO v LA

Under Article 13(1)(b) of the 1980 Hague Convention, grave risk ordinarily requires a high probability that return will expose a child to severe harm or an intolerable situation. In most cases this means more likely than not, although exceptionally grave consequences may justify a lower likelihood threshold.

The court should first consider whether the pleaded facts, taken alone, establish an intolerable peril, and then whether protective measures can neutralise it. Necessary findings and predictions can generally be made on written evidence without cross-examination. Under Article 13(2), the child-objections gateway asks only whether the child objects to return and has sufficient age and maturity; satisfaction creates a discretion, not an entitlement to refuse return.

The father sought the return of his two children from England to Ireland under the 1980 Hague Convention. The mother accepted that the children had been wrongfully removed from their habitual residence and that Ireland retained primary jurisdiction over long-term welfare decisions.

She relied on Article 13(1)(b), alleging grave risk of harm or an intolerable situation, and Article 13(2), relying on the children’s objections. The central issues were the degree of likelihood required for Article 13(1)(b), the role of protective measures and written evidence, whether cross-examination was necessary, and how the Article 13(2) discretion should be exercised.

1. Article 13(1)(b). The court treated the exception as forward-looking. The harm must be intolerable, meaning severe, and the risk must be grave. In Re E (Children) [2011] UKSC 27 and [2012] AC 144, the forward-looking nature of the inquiry and the relevance of protective measures were materially supported.
2. Likelihood. Grave risk means a high probability. Ordinarily, the court should be satisfied that intolerable peril is more likely than not to occur on return. Following the approach in Cream Holdings Ltd v Banerjee [2005] 1 AC 253, a lower threshold may be appropriate only in very exceptional cases where the consequences would be particularly grave. The court applied that approach to Article 13(1)(b).
3. Protective measures and evidence. The court should first ask whether the pleaded facts, taken alone, would amount to an intolerable peril. If so, it should consider whether protective measures can neutralise the risk. The powers under the 1996 Hague Convention reinforce the return mechanism. If protection is unavailable or impracticable, the court must assess the factual disputes as best it can in summary proceedings. The court considered that written evidence, documentary material and submissions can usually suffice. Cross-examination is not indispensable, although it may expose inconsistencies.
4. Article 13(2). The gateway requires proof that the child objects to return and has attained an age and degree of maturity at which the views should be taken into account. The objection is a simple objection to return; it is not filtered by whether the child objects to the country itself or merely expresses a preference. Once the gateway is satisfied, the court has a broad discretion, taking account of the nature and strength of the objections, parental influence, welfare considerations and Convention objectives. The court followed Re M (Republic of Ireland)(Child’s Objections)(Joinder of Children as Parties to Appeal) [2015] 2 FLR 1074 and rejected the contrary approach previously stated in B v B at [19].
5. Outcome. Neither exception was established. The court therefore ordered return under Article 12, allowing time for an orderly return by 14 February 2023. The father’s undertakings were recorded. The order would be stayed if the Irish court permitted the mother to remain in England pending determination of her relocation application, and would be dismissed if that application ultimately succeeded.

This was a first-instance application. The judgment records proceedings issued on 1 November 2022 and an inter partes hearing before Morgan J on 22 November 2022; no appellate decision is stated.