SD v MM

Under Art 13(b) of the 1980 Hague Convention, the party opposing return must establish a grave risk of physical or psychological harm, or an intolerable situation, if the child is returned forthwith. The court should not resolve disputed welfare evidence in the summary process. It should ask whether the allegations could constitute a grave risk and, if so, assess the future situation in the light of all the circumstances, including protective measures and the arrangements likely to apply on return. Educational difficulty, unhappiness or psychological impact will not necessarily meet the high threshold. The court must assess the seriousness of the particular risk for the particular child.

The father applied under the 1980 Hague Convention for the summary return to Romania of two children whom their mother had removed to England. The mother accepted that the children were habitually resident in Romania, that the removal was without the father’s consent while he was exercising rights of custody, and that the Romanian courts were seised of the dispute.

She relied on Art 13(b), alleging that the older child, R, would suffer psychological harm or face an intolerable situation if required to attend a Romanian state school. She relied on the same defence for the younger child, S, only on the basis that the siblings should not be separated.

1. Summary return. The court ordered the summary return of both children to Romania. The general rule under Art 12 of the 1980 Hague Convention is immediate return following wrongful removal, subject to the exceptions in Art 13.
2. Article 13(b) approach. The court applied the principles in A (Children) (Abduction: Article 13(b)) [2021] EWCA Civ 939 and Uhd v McKay (Abduction: Publicity) [2019] 2 FLR 1159. It was not for the court to decide, within the summary process, whether the mother’s account of R’s experience at Romanian state school was true. The question was whether, assuming the allegations were true, return would expose him to a grave risk or intolerable situation.
3. The evidence supported the possibility that R had struggled with the curriculum, disengaged from learning, fallen behind and become unhappy and angry. That possible psychological impact did not reach the required level of seriousness. His experience could not be characterised as grave harm or a situation which this particular child should not be expected to tolerate.
4. In any event, the future situation on return did not involve a realistic prospect of R returning to Romanian state school. His mother had the means and motivation to pay for School 2 or another private school, at least until the Romanian courts determined the children’s welfare, residence and education. That provided an additional reason why Art 13(b) was not established.
5. The 1996 Hague Convention was engaged by the wrongful removal. Romania retained jurisdiction over welfare matters, while the courts in England and Wales could take only urgent protective measures. Neither party contended that urgent measures were required. Return arrangements were to be made so that the children were back in Romania by the end of August 2024. The father’s undertakings concerning travel, proceedings and conduct were recorded, and permission was given for the proceedings documents to be disclosed to the Romanian court.

First-instance decision. The judgment describes ongoing proceedings in Romania concerning the children’s residence and education, but no appeal from an earlier judgment in this litigation.