A Mother v A Father & Anor

Under Article 13 of the Hague Convention, a child’s expression of distress about return does not necessarily amount to an objection. The court must evaluate the child’s words in context, including the reasons given, parental influence, maturity and individual circumstances.

For Article 13(b), the court should ask whether a grave risk exists and, if so, whether protective measures sufficiently ameliorate it. Separation from a parent who chooses not to return will not ordinarily constitute grave risk where the child returns with the other parent to a familiar home, school, medical care and social environment. A conditional summary-return order may be made where appropriate protective undertakings are provided.

The mother sought the summary return of her 12-year-old son to Singapore under Article 12 of the Hague Convention, incorporated by the Child Abduction and Custody Act 1985. The parents had lived in Singapore, where the child was habitually resident and subject to shared-care and financial orders.

The father had brought the child to England instead of returning him after a holiday. The parties agreed that the retention was wrongful, that the mother held and was exercising custody rights, and that the child was habitually resident in Singapore. The father relied on the child’s objection and Article 13(b), arguing that return would expose the child to grave psychological harm because of possible imprisonment or non-return by the father.

1. Child’s objection. The court considered the principles in Re M and other (Children) (Abduction: Child’s Objections) [2015] EWCA Civ 26, as summarised in Re Q and V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490. The child’s statements had to be assessed in context. His wish to remain in England was substantially linked to his fear, conveyed by the father, that the father would be imprisoned in Singapore. His changing views, health, learning difficulties and exposure to parental conflict meant that his views were relevant but not determinative. He did not object to return within Article 13.
2. Grave risk. Following the analysis in X (Children) (Abduction: Grave Risk: Child’s Objections) [2024] EWHC 1296 (Fam), the court addressed whether there was a potential grave risk and whether protective measures sufficiently reduced it. The possibility that the father would not return to Singapore would cause harm but was not grave or intolerable. The child would return with his mother to a known home, school, medical care and friends. The risk would be greater if the father were imprisoned, but that risk was assessed as low.
3. The court considered AT v SS [2015] EWHC 2703, Re GP (A child) [2017] EWCA Civ 1677 and Re W [2018] EWCA 664. The circumstances in Re GP and Re W were materially different because the position on return and the practical arrangements had not been considered in concrete terms, whereas the Guardian had examined the situation the child would face. The court also distinguished cases involving separation occurring at the time of abduction from this case, where the parents had already separated and financial orders had been made in Singapore.
4. The court would not revisit the Singapore financial orders on a summary-return application. The father bore the burden of proving Article 13(b). The proposed financial undertakings were not required beyond the measures specified, particularly given the father’s mortgage-free London property and ability to seek borrowing or assistance.
5. The Article 13 and Article 13(b) defences were rejected. A summary return order was made conditional on the mother providing specified undertakings, including measures concerning enforcement proceedings and the arrest warrant. The precise terms were to be settled on receipt of a draft order.