F v G

In an application under the 1980 Hague Convention, an Article 13(b) defence requires a sufficiently particularised and evidentially supported grave risk of physical or psychological harm or an intolerable situation on return. The court should assess the allegations cumulatively, while respecting the summary nature of the proceedings, and should examine effective protective measures in the state of habitual residence.

The Article 13 child-objections defence has a two-stage structure. The child must object, rather than merely express a preference, and must have sufficient age and maturity for the views to be taken into account. If the gateway is satisfied, the court retains a discretion at large. The child’s objections, welfare and Convention considerations must be balanced, including the possibility of influence by the abducting parent.

The mother applied for the summary return of her 11-year-old daughter, P, to Poland after the father retained her in the United Kingdom following an agreed holiday. The father accepted habitual residence in Poland, the mother’s custody rights and the absence of consent or acquiescence.

He relied on Article 13(b), alleging physical and psychological harm, neglect and an intolerable situation, and alternatively on P’s objections under Article 13. The mother denied the allegations and offered protective undertakings. CAFCASS assessed P as sufficiently mature but emotionally vulnerable and potentially influenced by the father and her sister. The central issues were whether either defence was established and, if the objections gateway was met, how the discretion should be exercised.

1. Article 13(b). The court applied the two-stage approach. First, it considered whether the allegations, taken at their highest but assessed through a reasoned and reasonable evaluation of the available evidence, could establish a grave risk. The allegations of physical assault lacked particulars and corroboration. The allegations of anger, neglect and discomfort concerning men staying overnight were insufficiently detailed or serious. Taken cumulatively, they did not establish a grave risk of harm or an intolerable situation.
2. Although it was unnecessary to proceed further, the court examined the protective measures available on return. The mother’s undertakings addressed violence, abuse, supervision and overnight male guests. Ongoing Polish welfare and divorce proceedings, expert assessment and the ability of the Polish court to monitor P’s welfare gave the undertakings significant weight. There was no evidence that the Polish authorities were unable or unwilling to protect P. The alternative Article 13(b) defence therefore failed.
3. Child’s objections. P’s current position was an objection to returning to Poland, not merely a preference. Because return to Poland necessarily involved returning to the mother, the two matters were inextricably linked. P, aged 11, had sufficient maturity for her views to be taken into account.
4. The discretion was at large. Relevant factors included the nature and strength of the objections, their authenticity and possible parental influence, their relationship to welfare considerations, and general Convention policies. P’s objections had strengthened after spending time with the father and L and were principally attributable to their influence. Her previous life in Poland had been settled, her school and friendships were broadly positive, and continued retention risked seriously damaging her relationship with the mother. The repeated wrongful retention of a child by the father increased the weight of Convention considerations.
5. The welfare and Convention factors predominated. P’s objections were overridden and the application was allowed. P was ordered to return summarily to Poland to live with her mother.