XZR (Abduction: Hague Convention (Lithuania)), Re

In proceedings under the 1980 Hague Convention, the parent opposing return bears the civil burden of establishing the Article 13(b) defence. The court should ordinarily adopt a two-stage approach: first assess the future risk on the basis of findings or reasonable assumptions about the alleged conduct; then assess whether protective measures would sufficiently reduce that risk. The assessment is cumulative and must address both likelihood and seriousness. Protective measures may include safeguards available in the requesting state. If the defence is not established, return is mandatory. If it is established, the court retains an unrestricted discretion, although a return despite a grave risk will ordinarily be exceptional.

The mother applied under the Child Abduction and Custody Act 1985 for the summary return of her five-year-old child to Lithuania under the 1980 Hague Convention. The father had removed the child from Lithuania to England during contact, contrary to Lithuanian court orders. The child had been habitually resident in Lithuania and the father’s earlier objections and settlement defences under Articles 12 and 13 had been summarily dismissed.

The father relied principally on Article 13(b), alleging that return would harm his relationship with the child, impair the child’s education and undermine his dual nationality and identity. The issues were whether there was a grave risk of harm or an intolerable situation, whether protective measures were relevant, and whether return should be refused in the court’s discretion.

1. Return ordered. The father failed to establish that return to Lithuania would expose the child to physical or psychological harm or otherwise place him in an intolerable situation within Article 13(b). The application was allowed.
2. The burden remained throughout on the father. The court applied the preferred two-stage approach. At stage one it assessed the nature and level of future risk, taking account of the cumulative effect of the allegations. At stage two it would have assessed the sufficiency and efficacy of protective measures. There was no separate legal or evidential burden on the mother to establish such measures.
3. The father’s complaints about restricted contact did not meet the grave-risk threshold. The Lithuanian orders arose from his violent and abusive conduct, allowed regular indirect contact and were capable of variation if his behaviour changed. The court was bound to give effect to the Lithuanian orders unless an exception under Article 23 of the 1996 Hague Convention or Article 20 of the 1980 Hague Convention applied. Neither exception arose. The father had been notified of, and represented at, the relevant hearing.
4. The alleged educational disadvantage and asserted injury to the child’s British identity were unsupported and did not amount to Article 13(b) harm. Since stage one failed, it was unnecessary to determine the protective-measures issue.
5. Return was mandatory under Article 12. In any event, the court would not have exercised its discretion to refuse return. The father’s conduct, threats and stated intention to frustrate compliance reinforced the need for immediate enforcement.
6. The court directed contempt proceedings under FPR 37.6 and refused bail. The relevant considerations included the strength of the case, the public interest, proportionality, the overriding objective and the child’s best interests.