T (Father) v G (Mother)

In proceedings under the 1980 Hague Convention, the Article 13(b) defence requires a forward-looking assessment of the grave risk to the particular child on return. The risk may arise from separation from the child’s primary carer, including where the carer will not return and the separation is linked to the carer’s genuine mental-health difficulties.

The source of the risk is not determinative. A court must evaluate the individual facts, the genuineness and likely consequences of the parent’s refusal to return, the impact of delay, and whether protective measures would sufficiently ameliorate the risk. If the defence is established, the court retains a discretion, but will ordinarily decline return where return would expose the child to the very harm constituting the defence.

The father applied under the 1980 Hague Convention for the return of the parties’ young child to the USA after the mother wrongfully retained him in England. The mother relied on Article 13(b), alleging grave psychological and emotional risks arising from the parties’ volatile relationship, her mental-health vulnerabilities, the child’s settled life in England, and the possibility that she would not accompany him on return.

A return order made in August 2023 was set aside by the Court of Appeal and the matter was remitted for rehearing: Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415. The central issue was whether return would expose the child to a grave risk of harm or an intolerable situation, and whether protective measures could address that risk.

1. Application dismissed. The mother established, to the civil standard, a grave risk that return to the USA would expose the child to psychological and emotional harm or an intolerable situation.
2. Article 13(b) is child-focused, forward-looking and concerned with the particular child in the particular circumstances. The court must assess disputed allegations evaluatively, while recognising the summary nature of Hague proceedings. It is not invariably required to take allegations at their highest where the evidence permits the possibility of an Article 13(b) risk to be confidently discounted.
3. The mother’s refusal to return was genuine and rooted in deep-seated fear and mental-health vulnerability. The court was entitled to consider the likely effect of return on her mental health, whether or not her fears were objectively reasonable, because that effect would bear directly on the child’s welfare and the parent-child relationship.
4. Return without the mother would separate the child from his primary carer for an indeterminate period. The child had been settled in England for about a year, had not seen the father in person during that period, and would face a risk of lasting psychological and emotional harm beyond the ordinary short-term disruption of a return order. The prolonged litigation had crystallised the mother’s refusal to return and increased the risk.
5. The protective measures offered by the father did not sufficiently mitigate the risk. Even if the mother returned, the likely severe deterioration in her mental health would create an intolerable situation for the child. If she did not return, protective measures were largely irrelevant to the central risk of separation.
6. Although the Article 13(b) defence was established, the court retained a discretion whether to order return. Applying the approach in Re M (Abduction: Zimbabwe) [2007] UKHL 55, the court declined to exercise that discretion because return would expose the child to the very harm found to constitute the defence.
7. The Hague Convention application was dismissed. The parties were directed to agree contact, initially in England, with a plan in principle for later contact in the USA.

• Court of Appeal: The August 2023 return orders were set aside and the matter was remitted for rehearing in Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415.
• High Court (Family Division): On rehearing, the Hague Convention application was dismissed.