M v A

In an application for the summary return of children under the 1980 Hague Convention, the court must assess an Article 13(b) defence prospectively. It must first evaluate the alleged risk at its highest, then examine whether protective measures would sufficiently address or ameliorate that risk. Several strands of risk must be considered cumulatively. Protective measures may be imposed in advance of return where necessary and directly connected to the identified risk. A child’s objection is a low-threshold gateway issue, but the objection and the child’s age and maturity must both be established. If the gateway is passed, the child’s views are not determinative; the court must weigh the objections, their authenticity, Convention policy and welfare considerations.

The father applied under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the summary return of his two children from England to Poland. The children had lived all their lives in Poland and were wrongfully retained in England after a holiday. The mother relied on Article 13(b), alleging domestic abuse and contending that her mental-health deterioration on return would expose the children to grave risk or an intolerable situation. She also relied on Article 13 in relation to the older child’s objections.

The court had to determine whether either defence was established and, if not, whether return should be ordered subject to protective measures.

1. Article 13(b): alleged abuse. The mother’s documentary evidence was sufficiently cogent that the allegations could not be discounted in the summary process. Taking them at their highest, there would be a grave risk to T of physical and psychological harm if the allegations of shouting and pushing were true, and a risk to both children from witnessing abuse of their mother and T.
2. Mental health. The mother’s psychological harm was relevant only insofar as its impact on her could expose the children to grave risk or place them in an intolerable situation. If mental health alone had been relied upon, the threshold would not have been established. The evidence did not show that the mother would be unable to care for the children, that her relationship with them would be adversely affected, or that she was at risk of suicide or self-harm.
3. Cumulative assessment and protection. The allegations and the mother’s mental-health case had to be considered cumulatively. The proposed measures sufficiently ameliorated the risks: independent accommodation away from the former matrimonial home and the paternal family’s block of flats; no contact between father and children except as agreed by the mother pending Polish proceedings; referrals to Polish social services; commencement of private-law proceedings in Poland; maintenance and child-benefit arrangements; and payment for relevant treatment. The return order was conditional on the measures being put in place in advance and could reflect most of them through an order under the 1996 Hague Convention.
4. Child objections. T’s strong reaction and stated wish not to return crossed the low gateway threshold for an objection. However, the evidence did not establish that she had attained the age and degree of maturity at which it was appropriate to take her views into account. The Cafcass assessment had significant limitations and its opinion on maturity was tentative.
5. If the gateway had been passed, the court would nevertheless have exercised its discretion in favour of return. Relevant considerations included uncertainty about the authenticity of T’s views, Convention policy, the children’s lifelong residence in Poland, and the protective measures addressing the apparent source of T’s objection.
6. The mother failed to establish either defence. The children were to be returned to Poland once the specified protective conditions had been met.