HR (Parallel Child Abduction and Asylum Proceedings), Re

In a 1980 Hague Convention return application, the court must determine the Convention issues on their own merits and must not conduct a welfare comparison between return and remaining in the requested state when assessing an alleged intolerable situation under article 13(b). A traumatic return, including short-term foster care or separation caused by the abducting parent’s arrest, does not necessarily meet the high threshold of grave risk and intolerability. Where children object under article 13(2), the court must exercise a broad, case-specific discretion. Welfare is relevant but not paramount, and the Convention’s purposes remain important. Parallel asylum proceedings do not ordinarily prevent the Family Court from determining the Hague application. The Secretary of State retains exclusive responsibility for protection claims, while the two proceedings should be coordinated and expedited.

The mother removed her two American children from the United States to England and accepted that the removal was wrongful under the 1980 Hague Convention. She resisted summary return under article 13(b), relying principally on the anticipated consequences of her arrest and the children’s temporary separation from her, and under article 13(2), relying on their objections.

The mother had claimed asylum for herself and the children. That claim, and subsequent appeals, had been dismissed before the Hague hearing. The proceedings nevertheless took about 15 months to reach an effective final hearing. The central issues were whether either Convention exception was established, how the children’s objections should affect the court’s discretion, and how Hague and asylum proceedings should interact.

1. Return ordered. The mother failed to establish either article 13(b) or article 13(2) as a basis for refusing return. The father’s application succeeded, subject to detailed arrangements for implementation.
2. On article 13(b), the court applied the approach in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, as qualified by Re K (1980 Hague Convention: Lithuania) [2015] EWCA Civ 720 and explained in Re A (Children) (Abduction Article 13(b)) [2021] EWCA Civ 939. The court could confidently discount the possibility that the sexual-abuse allegations created an article 13(b) risk, given their rejection by the US court, the US child-protection agency and the First-tier Tribunal. The allegations therefore required no further evaluation in the Hague proceedings.
3. The court expressly declined to decide whether the article 13(b) situation should be assessed by comparing return with remaining in England. It observed that article 13(b) focuses on risk on return, and that a comparative welfare evaluation would be inconsistent with the summary Convention process. The court assessed the children’s situation on return alone. Their likely trauma, the mother’s probable arrest, temporary foster care and possible short imprisonment were serious, but fell short of an intolerable situation. The father was required to give specified undertakings, including arrangements concerning custody and the children’s immediate care.
4. Under article 13(2), both children objected to return and were sufficiently mature for their views to be considered. The resulting discretion was governed by Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55. No exceptional circumstances were required, but welfare was not paramount. The court considered the children’s objections, the unreliable factual narrative on which they were based, the absence of UK ties, the Convention’s policy, comity, the guardian’s professional view and the prospect of addressing the family issues in the United States. It gave substantially reduced weight to the objections and ordered return.
5. Parallel asylum proceedings did not deprive the High Court of jurisdiction to determine the Hague application. Following G v G [2021] UKSC 9, protection claims remained exclusively for the Secretary of State, but the Hague proceedings could proceed separately and should be coordinated, with early communication, disclosure decisions, representation for children and judicial oversight. The court declined to decide whether post-Brexit changes had altered the position on stays and refoulement, identifying the issue as requiring full argument in an appropriate case.

First-instance decision in the High Court (Family Division). The judgment records that the mother’s asylum claim and related appeals had been dismissed, but those proceedings were separate from the Hague application.