H v A

In Hague Convention 1980 proceedings, the Article 13(b) inquiry focuses on the child’s position on return, rather than the conduct which created the risk. Separation from an abducting parent, including through that parent’s possible imprisonment, can establish grave risk, but the court must assess the evidence and available protective arrangements in the round. A possible prosecution or custodial sentence does not automatically make return intolerable. The high threshold was not met where imprisonment was uncertain and arrangements could minimise its impact.

The father sought the return of the parties’ three children to Sweden under the Hague Convention 1980. An earlier judgment, H v A [2024] EWHC 476 (Fam), rejected all the mother’s other defences and adjourned the Article 13(b) issue for further evidence concerning possible detention or imprisonment in Sweden.

The court considered psychological and Swedish-law evidence, the children’s attachment to their mother, the Swedish welfare order placing them with their father, and available protective arrangements. The central issue was whether return would expose the children to grave risk of harm or place them in an intolerable situation.

1. The court applied Article 13(b) of the Hague Convention 1980. The focus was on the children and the risk on return, not the source of the risk. Separation from the abducting parent could establish grave risk, but “grave” and “intolerable” imposed a high threshold.
2. A unilateral psychological report was admitted as relevant information, but not as expert evidence. No Family Procedure Rules 2010 Part 25 application had been made, and the report was prepared for different proceedings on a selective factual basis.
3. The possible detention, trial and imprisonment of the mother created a real risk of emotional harm, but the outcome was uncertain. The Swedish court had recently decided, after contested proceedings in which both parents participated, that the children should be cared for by their father. He could provide stable care, and the siblings’ continued relationship would mitigate harm.
4. The mother could mitigate the risk by cooperating with the Swedish authorities, arranging accommodation and complying with court orders. Her refusal to return or take such steps did not determine the Article 13(b) issue, since the focus remained the effect on the children.
5. The court was not satisfied that return would be intolerable or that Article 13(b) was established. The children were allowed eight weeks to return with their mother. If she had not returned with them, the father was authorised to collect them from England. Subsequent welfare arrangements were for the Swedish court.

First-instance proceedings. The judgment records the earlier judgment in the same litigation, H v A [2024] EWHC 476 (Fam). No appeal is stated.