S (A Child) (Abduction: Article 13(b)), Re

Article 13(b) requires a two-stage, child-focused assessment. The court must first ask whether, assuming the allegations are true, return would potentially create a grave risk of physical or psychological harm or an intolerable situation. If so, it must examine whether proposed protective measures would address or sufficiently ameliorate that risk. The assessment must consider matters cumulatively, the child’s particular vulnerabilities, separation from a primary carer and the foreseeable longer-term situation. It is not confined to immediate harm. Domestic abuse directed at a parent and separation from that parent may each contribute to the Article 13(b) risk. Protective measures must engage substantively with those risks. A later welfare assessment cannot cure risks created by an unassessed return and indeterminate placement with an allegedly abusive parent.

The mother wrongfully removed S, aged seven, from Ireland to England in June 2024. The father sought S’s summary return under the 1980 Hague Child Abduction Convention. The mother relied on Article 13(b), alleging serious domestic and sexual abuse by the father, deterioration in her mental health if she returned, S’s vulnerabilities, and the effects of separation from her and S’s sibling. She made clear that she would not return to Ireland. The High Court ordered S’s return on undertakings, finding that Article 13(b) had not been established. The mother appealed, arguing that the judge had failed to apply the required two-stage approach, had treated a Cafcass Officer’s evidence as decisive, had focused impermissibly on immediate harm, and had not assessed the risks cumulatively. The central issue was whether the evidence established a grave risk despite the proposed protective measures.

Appeal allowed. Lord Justice Moylan gave the leading judgment, with Lady Justice Asplin and Lady Justice Elisabeth Laing agreeing.

1. Governing approach. Under Article 13(b) of the 1980 Hague Child Abduction Convention, the court must first ask whether, assuming the allegations are true, they would potentially establish a grave risk of physical or psychological harm or an intolerable situation. If they would, the court must then ask how the child can be protected and whether proposed measures would address or sufficiently ameliorate the risk. This was the approach in In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 and In re S (A Child) (Abduction: Rights of Custody) [2012] 2 AC 257. Relevant matters should generally be assessed cumulatively, and the nature of the harm affects the level of risk required.
2. Scope of the risk. The meaning of an intolerable situation is child-specific: the question concerns what this particular child in these particular circumstances should be expected to tolerate, as explained in In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619. Physical or psychological abuse directed against the taking parent may expose the child to psychological harm. Separation from the taking parent may itself establish a grave risk: In re A (Children) (Abduction: Article 13(b)) [2021] 4 WLR 99; In re R (Children) [2025] Fam 67. The assessment is not confined to immediate events and must address the foreseeable longer-term situation.
3. Errors below. The judge did not ask whether the mother’s allegations, if true, would potentially establish a grave risk. He omitted the risk arising from placing S with the father, relied disproportionately on the Cafcass Officer’s limited observation that there was no immediate risk, discounted S’s vulnerabilities, and treated separation from the mother as a welfare issue rather than an Article 13(b) issue. He also failed to analyse how the proposed protective measures would address the identified risks.
4. Re-made decision. Assuming the allegations to be true, S’s return to live with the father would establish a grave risk of psychological harm or an intolerable situation. That risk was compounded by S’s vulnerabilities and his abrupt separation from the mother and sibling, who were his main sources of emotional security. The undertakings concerning travel, accommodation, non-molestation, proceedings and video contact did not materially address those risks. A future welfare report, prepared only after separation and an indeterminate placement with the father, was not an effective protective measure. Article 13(b) was therefore established, and there was no justification for exercising the discretion to order return. The order below was set aside and the father’s application was dismissed.

• Court of Appeal (Civil Division): Appeal allowed. The order below was set aside and the father’s summary return application dismissed because Article 13(b) was established and the discretion to order return was not justified. [2025] EWCA Civ 1119.
• High Court of Justice, Family Division: On 22 April 2025, Recorder Warshaw KC, sitting as a deputy High Court judge, ordered S’s summary return to Ireland on undertakings, holding that the mother had not established Article 13(b).