PZ (A Child) (Hague Convention: Art 13(B)), Re

Under Art 13(b) of the 1980 Hague Convention, the person opposing return must establish a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation. The court must assess the future situation on return, assume any reasonably supported risk at its highest, and examine whether effective protective measures can mitigate it. Anxiety in the returning parent may found the exception even if objectively unreasonable, but the likely effect on parenting remains central. Practical difficulties, limited finances, immigration uncertainty and reduced support do not necessarily establish grave risk, particularly where accommodation, maintenance, healthcare and legal protection are available. The exception failed and return was ordered.

The father applied under the 1980 Hague Convention and the Child Abduction and Custody Act 1985 for the return of his young daughter to New Zealand. The child had been habitually resident there and her retention in the United Kingdom was accepted to be wrongful.

The mother relied on Art 13(b), citing immigration and financial insecurity, lack of accommodation and support, alleged safety concerns, and the anticipated effect of return on her mental health and parenting. The central issue was whether those matters, considered individually or cumulatively and in light of proposed protective measures, established a grave risk of harm or intolerability.

1. Application dismissed. The mother failed to establish the Art 13(b) exception. The court therefore ordered the child’s return to New Zealand.
2. The court applied the established approach that the burden rested on the person opposing return, assessed on the ordinary balance of probabilities while recognising the summary nature of Convention proceedings. The relevant question was the situation that would face the child if returned forthwith. The court could assume the risk at its highest where that assumption was reasonably grounded in the evidence, and then consider protective measures.
3. The mother was entitled to enter New Zealand as a tourist for six months. That period was sufficient for the New Zealand relocation proceedings to be considered. The possibility that the relocation application might fail, requiring her ultimately to leave without the child, was a matter for the New Zealand court’s welfare determination and did not establish an Art 13(b) defence.
4. The proposed financial arrangements were adequate. The lump sum, maintenance, legal-aid availability and possible international custody dispute payment provided sufficient resources for accommodation and maintenance during the relevant period. The mother would also have access to healthcare, counselling, medication and independent accommodation.
5. The alleged past physical shove, taken at its highest, did not itself establish grave risk. Any potential risk from the father was substantially addressed by undertakings to be incorporated into an enforceable New Zealand order, including undertakings concerning violence, harassment, proximity and contact with specified relatives.
6. The mother’s adjustment disorder and the likely stress of return were carefully considered. Her anxiety could in principle engage Art 13(b) even if objectively unreasonable, but the expert evidence did not establish a likely deterioration in parenting to the point of harm or intolerability. The court considered it unrealistic that every adverse circumstance would occur simultaneously, particularly given the protective measures.
7. The return had to be effected forthwith, but the particular circumstances justified approximately six weeks rather than 21 days or 12 weeks. Return was ordered by 23.59 on 21 April 2024, with the father’s lump sum payable in two instalments.

The order did not determine where the child should ultimately live. That remained for the New Zealand courts.