GK v HX

Under Article 13(b) of the 1980 Hague Convention, the burden lies on the person opposing return to establish a grave risk of harm or intolerability. In summary proceedings, the court should assess the alleged risk at its highest, while evaluating the evidence sufficiently to make the assumptions reasoned and reasonable.

Where the opposing parent says they will not accompany the child, the court must assess the likelihood of that refusal and consider the surrounding circumstances, including family history, professional evidence, reasons for refusal, possible tactical motivation and the prospect of a change of position. Protective measures must then be considered. A return order should not ordinarily be deferred where doing so would undermine the Convention’s purpose.

The applicant father sought the summary return of his five-year-old son to Australia under the 1980 Hague Convention. The respondent mother had wrongfully removed the child from Australia to England without the father’s knowledge or consent.

The mother relied on Article 13(b), asserting that she would not return to Australia and that separation from her, as the child’s primary carer, would expose him to grave psychological harm or place him in an intolerable situation. She also relied on alleged domestic abuse, her mental health and financial concerns. The central issues were the likelihood of her refusal to return, the adequacy of protective measures, and whether return should be delayed pending the Australian proceedings.

1. Return order. The application succeeded. The court ordered that the child be returned to Australia by 11.59 pm on 10 December 2024. If the mother refused to return with him, she was required to hand him to the father for return.
2. The burden under Article 13(b) rested on the mother and had to be discharged on the balance of probabilities. Applying the principles summarised in Re E and Re S, the court considered the alleged risk at its highest, consistently with the summary nature of the proceedings.
3. Following R (Child Abduction: Parent’s Refusal to Accompany), the court made a reasoned assessment of the likelihood that the mother would not return. Relevant considerations included family history, professional evidence concerning health, the reasons for refusal, possible tactical motivation and the chance that her position would change after an order.
4. The mother’s anxiety and panic disorder were treatable in Australia. Protective orders, healthcare, financial assistance and arrangements for supervised contact were available. The court considered it likely that the mother, as a loving and caring primary carer, would change her position rather than allow the child to be separated from her.
5. There was consequently no grave risk arising from separation. Nor would return with the mother create a grave risk or intolerable situation. The court considered the Australian protective measures and the father’s undertakings sufficient in the circumstances.
6. Return should not be deferred pending determination of the Australian relocation proceedings. Those proceedings were stayed, their resolution was uncertain, and delay would subvert the Convention’s objective of returning the child so that the court of habitual residence could determine his long-term future.