R (Child Abduction: Parent’s Refusal to Accompany), Re

When a parent opposing summary return under Article 13(b) asserts that they will not accompany the child, the court must assess the likelihood of non-return rather than assume the assertion to be true. There is no presumption that the parent will return. The assessment is summary and evaluative, taking account of the family history, the reasons given, possible tactical behaviour, professional evidence and the prospect of the position changing.

The resulting likelihood must be considered with all the evidence when deciding whether return creates a grave risk of harm or an intolerable situation. The source of the risk is irrelevant. Oral evidence may be permitted but remains exceptional, and early case management should ensure that non-return and protective measures are addressed in written evidence.

The father sought the summary return to France of three young children whom the mother had wrongfully removed to England. The High Court dismissed his application under the 1980 Hague Convention. It found that he had acquiesced for a period and that returning the children without their mother would expose them to grave risk and an intolerable situation. The mother had stated that she would not return to France.

The father appealed on acquiescence, Article 13(b), protective measures, procedural fairness and discretion. The central issue was whether the judge had been entitled to take the mother’s assertion of non-return at its highest, rather than assess the likelihood that she would act upon it.

1. Appeal dismissed. The judge materially misdirected himself by treating the mother’s assertion that she would not return as having to be taken at its highest. That approach, derived from the summary assessment of domestic-abuse allegations in Re E, did not apply to the different question of whether a parent would accompany children on return.

2. Where non-return is asserted, the court must make a reasoned, summary assessment of its likelihood. It should scrutinise the unusual assertion closely and consider the overall circumstances, family history, professional advice about the parent’s health, reasons for refusing, possible tactical behaviour and the prospect of the position changing after an order. It must neither assume non-return nor apply a rebuttable presumption that the parent will return. The conclusion forms part of the overall Article 13(b) assessment rather than constituting a binary finding of fact.

3. The parent opposing return must establish a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The source of the risk is irrelevant. Separation from a taking parent may itself satisfy Article 13(b), but the court must assess the actual risk and guard against tactical circumvention of the Convention.

4. Oral evidence about non-return is permissible but is not required. The threshold remains high because Convention proceedings are summary. Courts should identify the issue early and require it, together with proposed protective measures, to be addressed in statements.

5. The evidence of physical risk from the father was slight, and the judge had acted unfairly in discouraging submissions before later relying on that risk. The point was peripheral and caused no serious procedural irregularity rendering the decision unjust. The judge’s conclusion concerning psychological harm and intolerability disclosed no basis for appellate intervention.

6. Once the judge concluded that return without the mother would be intolerable, the father had an opportunity to propose measures reducing the risk to an acceptable level. He proposed none and did not seek an adjournment. There was no improper reversal of the burden and no reason for the judge to adjourn of his own motion.

7. Although the judge applied the wrong approach to non-return, his judgment showed that he regarded the mother’s intention as genuine and would, on the correct approach, have found a high degree of likelihood that she would not return. The outcome would therefore have been the same. The findings on acquiescence and the exercise of discretion also stood.

1. Court of Appeal (Civil Division): The father’s appeal was dismissed in [2024] EWCA Civ 1296. The High Court’s order refusing summary return remained in force, despite a material misdirection concerning the assessment of the mother’s asserted non-return.
2. High Court, Family Division: Mr David Lock KC, sitting as a deputy High Court judge, dismissed the father’s application for summary return. He upheld the mother’s cases under Article 13(b) and acquiescence.