AB and CD (Children) (1980 Hague Child Abduction Convention: Harm/Intolerable Situation; Child's Objections), Re

Under Article 13(b) of the 1980 Hague Convention, allegations must establish a grave risk of harm or an intolerable situation on the circumstances expected after return. The court must assess the future position and may consider protective measures, including engagement with welfare authorities.

Where the child-objections gateway is met, the discretion is broad. The court should consider the nature and strength of the objections, their authenticity, the child’s age and maturity, welfare considerations, and Convention policy. The child’s views are important but are not determinative. A return order was made.

The maternal grandfather and his partner, who were the children’s special guardians in Ireland, applied under the 1980 Hague Convention for the return of two brothers aged 14 and 9. The children had been habitually resident in Ireland and their retention in England was agreed to be wrongful under Article 3.

The mother opposed return under Article 13(b), alleging risks arising from the special guardians’ care and from a forced return, and under the child-objections limb of Article 13. The central issues were whether either exception was established and, if so, how the court should exercise its discretion.

1. Return order. The application was granted. The return order was to take effect by midnight on 30 December 2024. Protective measures and undertakings concerning engagement with TUSLA, schools and other professionals were recorded.
2. Article 13(b). Applying the guidance in Re E (children) (international abduction) [2011] UKSC 27, and the principles summarised in MB v TB [2019] EWHC 1019 and Z v D (Refusal of Return Order) [2020] EWHC 1857, the allegations had to be taken at their highest. The assessment nevertheless concerned the future situation following return. The allegations of neglect, punitive care and inadequate promotion of contact, taken individually and cumulatively, fell short of the level of harm required by Article 13(b). The court also took account of the likely availability of support and monitoring from TUSLA.
3. Child objections. The children had attained the necessary age and maturity and both objected to return. The gateway was therefore satisfied. The discretion was broad and required consideration of the strength and authenticity of the objections, possible influence by the abducting parent, welfare considerations and Convention policy, with greater weight generally attaching to the views of an older child. Applying C v M (A Child) (Abduction: Representation of Child Party) [2023] EWCA Civ 1449 and the passages from Re M Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, the judge was not confident that the objections were wholly authentic. The children’s objections were also inconsistent with the earlier welfare evaluation favouring their continued care in Ireland.
4. The court emphasised that these proceedings determine the forum for resolving long-term care arrangements, not those arrangements themselves. The judgment and relevant papers could be disclosed to the English and Irish welfare authorities.