TKJ (Abduction: Hague Convention (Italy)), Re

In Hague Convention proceedings, the Article 13(b) exception requires a two-stage assessment. The court must first assess the grave risk to the child on the basis of established or assumed facts, including the cumulative effect of domestic abuse and its impact on the child or taking parent. It must then assess whether available protective measures would adequately and effectively reduce the risk below the Convention threshold.

A parent’s genuine subjective fear of renewed domestic abuse may be relevant even if objectively unreasonable. Human-rights risks to the taking parent under Articles 2 and 3 ECHR are ordinarily addressed indirectly through Article 13(b), although the Article 2 and 3 jurisprudence may inform that assessment. Where Article 13(b) is established, return will ordinarily be refused.

The father applied under the Child Abduction and Custody Act 1985 for the summary return of his five-year-old daughter to Italy under the 1980 Hague Convention. The mother had removed the child from Italy after the breakdown of the parties’ relationship and alleged prolonged physical, coercive and controlling domestic abuse.

Habitual residence in Italy, the father’s custody rights, wrongful removal, absence of consent or acquiescence, and the absence of the settlement and child-objection exceptions were undisputed. The central issues were whether the mother had established the Article 13(b) grave-risk exception, whether protective measures would sufficiently mitigate the risk, and how an alleged risk of treatment contrary to Article 3 ECHR should be addressed.

1. Article 13(b). The mother established, on the balance of probabilities, a grave risk that return would expose the child to physical or psychological harm or place her in an intolerable situation. The court made positive findings that the mother had suffered prolonged domestic abuse, including violent, coercive and controlling behaviour. It also assumed, where appropriate, that the father had alcohol problems and had subjected the mother to sexual abuse.
2. The abuse had caused the mother an adjustment disorder likely to deteriorate on return, potentially impairing her ability to parent. The child had witnessed abusive incidents and was likely already psychologically harmed. The father’s conduct also created a direct risk to the child, including through intoxicated driving.
3. The court applied the two-stage approach in Re B. At stage one it assessed the cumulative future risk on the established facts and assumptions. At stage two it considered the proposed protective measures, including Italian welfare and court services, undertakings, accommodation, maintenance, restrictions on contact and mirror orders.
4. The measures were inadequate and ineffective. They could not prevent the mother from resuming the relationship, and the father had demonstrated a willingness to abuse and breach court orders. His alcohol problems, threats, dishonesty and the mother’s continuing subjective fear heightened the risk.
5. The court also found substantial grounds for believing that return would expose the mother to treatment reaching the Article 3 threshold. Following G v G, that issue was addressed indirectly through Article 13(b), rather than by using Article 20 as an alternative route. Article 2 and 3 jurisprudence could nevertheless illuminate the Article 13(b) assessment and inform the required efficacy of protective measures.
6. Having established Article 13(b), it was inconceivable that the court would order return in its discretion. The father’s application was dismissed. The mother’s Part 25 application for a psychologist’s report did not require determination.

First-instance decision. The judgment records no appeal or earlier determination forming part of the same proceedings, apart from a prior summary dismissal of an argument concerning habitual residence.