H v O (Art 13(b) and Domestic Abuse)

In an application for summary return under the 1980 Hague Convention, domestic abuse may establish the grave risk required by Art 13(b), but neither domestic abuse allegations nor their absence automatically determine the outcome. The court must assess the risk on the evidence, assume it at its highest where appropriate, and examine in concrete terms whether protective measures would be truly effective on return.

Undertakings require careful scrutiny, including their likely compliance, consequences and enforceability in the requesting state. Uncertainty about the taking parent’s immigration status, accommodation and access to protection may materially undermine those measures. If the Art 13(b) exception is established and effective protection cannot be identified, return will ordinarily be refused.

The father applied under the Child Abduction and Custody Act 1985 for the summary return of three children to the Netherlands under Art 12 of the 1980 Hague Convention. The children had been habitually resident in the Netherlands and their removal was wrongful.

The mother resisted return under Art 13(b), relying on allegations of serious domestic abuse, coercive and controlling behaviour, physical abuse of the children and a threat of FGM. She also relied on the children’s objections under Art 13. The Secretary of State intervened because the mother and children had protection and immigration claims in the United Kingdom.

The central issues were whether Art 13(b) or the children’s objections exception applied, whether return should nevertheless be ordered, and whether implementation should await the determination of the mother’s protection claim.

1. Application dismissed. The court found a grave risk that each child’s return to the Netherlands would expose them to physical or psychological harm or otherwise place them in an intolerable situation under Art 13(b) of the 1980 Hague Convention.
2. Applying Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144, the court assumed the risk at its highest, while making reasoned and reasonable assumptions based on the admissible evidence and the summary nature of the proceedings. The evidence of serious domestic abuse was corroborated by the father’s own admission, independent evidence, Dutch child-protection material and the children’s accounts.
3. The risk analysis concerned the children’s prospective situation on return. The court was required to distinguish practical arrangements for return from protective measures directed to mitigation of the Art 13(b) risk. It applied the principles that protective measures must be assessed concretely and that undertakings require scrutiny as to compliance, consequences and enforceability.
4. The father’s proposed undertakings were insufficient. There was inadequate evidence concerning their effectiveness in the Netherlands, the willingness of Dutch authorities to provide confidential accommodation and a welfare assessment, and the enforceability or mirroring of English undertakings. The uncertain and precarious immigration status of the mother and children further undermined the efficacy of the proposed protection.
5. The court rejected the suggestion that domestic-abuse cases attract any automatic result. Each case turns on its facts. Where the Art 13(b) threshold is met and sufficient protective measures cannot be identified, the court may refuse return and would ordinarily not exercise its discretion to order return notwithstanding the exception.
6. D and Y did not establish the separate child-objections exception. Although their views were negative towards their father and return, their limited engagement with the Children’s Guardian did not safely establish an objection to returning to the Netherlands.
7. It was unnecessary to decide whether implementation of a return order should await determination of the mother’s protection claim.