D v E

In an application under Article 13(b) of the 1980 Hague Convention, the court must adopt a structured two-stage approach. It must first decide whether the allegations, if true, could create a grave risk of physical or psychological harm or an intolerable situation for the child. It must then assess the evidence and determine whether protective measures would sufficiently remove or ameliorate that risk.

Protective undertakings and the ability of authorities in the requesting state to provide protection are important, but they may not be sufficient where the child’s safety depends upon the stability and mental health of the abducting parent. The court may refuse return where returning the child with that parent would create a grave risk of serious psychological harm, even though the child would not return to the original living conditions.

The father applied under the 1980 Hague Convention for the return of his nearly three-year-old daughter, O, to Spain. The mother accepted that O’s removal from Spain was wrongful but relied on Article 13(b), alleging domestic abuse, coercive control, unstable living conditions and a grave risk of harm if she and O returned.

The evidence included Spanish social-services material, safeguarding evidence and an expert psychiatric assessment. The central issues were whether the mother’s allegations were sufficiently detailed and substantial to raise a grave risk, and whether undertakings, financial support, accommodation, social services and other protective measures in Spain would sufficiently address that risk.

1. Article 13(b) threshold. The court accepted the Convention’s limited purpose and the high threshold created by the words grave risk and intolerable situation. The mother’s allegations of controlling behaviour, aggression and the unsafe home environment were sufficiently detailed and supported by third-party evidence to raise a grave risk if true (paras [55]–[57]).
2. Two-stage inquiry. The court first assessed whether the allegations could establish the relevant risk and then considered whether protective measures could sufficiently ameliorate it. The court did not decide the disputed allegations finally because the proceedings were summary in nature and the evidence had not been tested (paras [56], [58], [71]).
3. Protective measures. Spain’s authorities were accepted to be as capable as those in England of protecting victims of domestic abuse and children. Non-financial undertakings could be enforced in Spain. The mother’s parents could provide short-term accommodation, and the father offered financial support and other safeguards (paras [59]–[65]).
4. Limits of protection. Those measures could not remove the risk arising from the mother’s likely destabilisation on return. The evidence indicated that returning her to Spain, without secure longer-term accommodation and support, could trigger self-harm, suicidal thoughts and depression, impairing her care of O. That created a grave and obvious risk of psychological harm to O or an intolerable situation for her (paras [65]–[68]).
5. Disposition. The Article 13(b) defence was established. The court exercised its discretion to refuse O’s return. The decision was confined to the summary Convention proceedings and did not prevent the Spanish courts from exercising welfare jurisdiction (paras [70]–[71]).