FC v MS

In an application under the 1980 Hague Convention, the Article 13(b) defence requires a grave risk of physical or psychological harm or an intolerable situation for the particular child in the particular circumstances. The court must assess the defence holistically, while avoiding a quasi-welfare inquiry into where the child should ultimately live. Allegations may be taken at their highest where summary proceedings prevent fact-finding. Even if the threshold is met, the court must consider protective measures available in, or capable of being put in place by, the state of habitual residence. A likely deterioration in a primary carer’s mental health may be relevant, but it does not establish grave risk where the carer will remain in a safe location and the deterioration is manageable.

The father applied under the 1980 Hague Convention for the summary return of his seven-year-old son to Ireland. The child had been habitually resident there and was wrongfully removed to England by his mother. The mother relied initially on Article 13(2), contending that the child objected to return, and on Article 13(b), alleging domestic abuse, risks arising from her mental health, the child’s particular needs, and the consequences of separation from her and his sibling. The Article 13(2) defence was withdrawn. The central issue was whether the Article 13(b) threshold was established and, if so, whether protective measures could sufficiently address the identified risks.

1. Application granted. The Article 13(2) defence was withdrawn. The Article 13(b) defence was not made out, and the child was ordered to return to Ireland by no later than 25 May 2025, subject to the undertakings given by the father.
2. Article 13(b) requires a grave risk of physical or psychological harm or an intolerable situation. The burden rests on the parent relying on the defence. The risk must be sufficiently serious to be characterised as grave, while intolerability is assessed by reference to what this particular child, in the particular circumstances, should be expected to tolerate. The court may take allegations at their highest where the summary nature of the jurisdiction makes fact-finding inappropriate.
3. The court must consider the defence holistically but must avoid applying a quasi-welfare test. The question is not where the child should ultimately live. That question falls to the court of habitual residence.
4. Even if Article 13(b) is established, the court must consider protective measures. Here, the father offered undertakings concerning travel, accommodation, non-molestation, proceedings, contact and the immediate initiation of a welfare inquiry in Ireland. The evidence indicated no immediate risk to the child if returned into the father’s care while that inquiry commenced.
5. The mother’s likely deterioration if required to return to Ireland was significant, but she was determined to remain in England. Expert evidence indicated that any deterioration caused by separation from the child would be manageable while she remained there. Accordingly, no grave risk to the child arose from that aspect of the case.
6. The child’s additional educational and behavioural needs, and his separation from his mother and sibling, did not make return intolerable. Resources had been available in Ireland, and temporary care by the father was not shown to be inadequate. The child was to return to Ireland, with provision for a handover through the family social worker and for residence with the mother if she changed her mind and returned.