RE v RL

In an application under the 1980 Hague Convention, the Article 13(b) defence has a high threshold and focuses on the child’s concrete situation on return. The court must first consider whether allegations, taken at their highest, could establish a grave risk of harm or an intolerable situation. If so, it must assess whether effective protective measures sufficiently ameliorate that risk.

Unhappiness, isolation or financial difficulty alone will not necessarily establish grave risk. Adequate accommodation, interim support, undertakings and protection available in the requesting State may remove the risk. The Convention’s objective of prompt return remains important.

The father applied for the summary return of the parties’ infant child, R, to Italy under the 1980 Hague Convention. The mother accepted that R was habitually resident in Italy and that his retention in England was wrongful under Article 3. She opposed return under Article 13(b), relying on alleged domestic abuse, substance misuse, social and linguistic isolation, financial dependence, immigration difficulties and inadequate support.

The father offered undertakings concerning accommodation, maintenance, non-attendance at the mother’s accommodation, care of R, travel and immigration costs. The central issue was whether effective arrangements on return removed any grave risk that R would suffer physical or psychological harm or be placed in an intolerable situation.

1. Article 13(b) framework. The defence is narrowly confined and has a high threshold. The focus is the risk to the child, assessed in concrete terms. Where allegations are disputed, the court first asks whether, if true, they could establish a grave risk. If they could, it must then determine whether the risk can be addressed or sufficiently ameliorated by protective measures.
2. Potential risk. If the mother and R had to live with the father, or R had to live with him, the allegations, taken at their highest, were sufficient to give rise to a grave risk. A return without accommodation or funds could also place R in an intolerable situation.
3. Protective measures. Those situations would not arise. The father’s undertakings provided accommodation, interim maintenance, travel and visa costs, an early application to the Italian courts, and protection against removal of R from the mother’s care without agreement or court order. These measures, together with protection available from Italian authorities, were effective.
4. The mother’s likely unhappiness, isolation and limited Italian did not create an Article 13(b) risk to R. The defence therefore failed and an order for R’s return to Italy was made. The return was not delayed for the Nulla Osta procedure because that would conflict with the Convention’s objective of prompt return.