Y (The Father) v Y (The Mother) (Child Abduction and Custody Act 1985, Re)

Under Article 13(b) of the 1980 Hague Convention, the court must assess the concrete situation the child would face on return. The risk must be grave, and the resulting harm or situation must be intolerable for that particular child. The source of the risk may include the abducting parent’s mental health, but the focus remains the impact on the child.

The court must consider available protective measures, including shared care, financial and therapeutic support, and safeguards in the requesting State. A child’s objection is a gateway issue requiring a straightforward and fairly robust assessment of objection, age and maturity. If the gateway is crossed, the discretion is at large and must balance Convention objectives with welfare considerations.

The father sought the summary return to Israel of his two sons, aged 12 and 9, after the mother retained them in England following an agreed holiday. The mother accepted that the retention was wrongful.

She relied on Article 13(b), asserting grave risk arising from the Israel-Hamas conflict and from the likely deterioration of her mental health and alcohol misuse if required to return. She also relied on the children’s objections. The court considered expert psychiatric evidence, a CAFCASS report and proposed protective arrangements. The central questions were whether either defence was established and, if so, whether the court should exercise its discretion to refuse return.

1. Article 13(b). The mother’s psychiatric evidence was accepted. A return might adversely affect her mental health and increase the risk of problematic drinking, but the children would return to the shared-care arrangement previously operated by both parents. The mother would not bear sole responsibility for them.
2. The court assessed the situation in concrete terms. The father’s proposed package included flights, three months’ accommodation and financial support, continuation of shared care, no attendance at the airport and no criminal proceedings concerning the retention. The mother could also access therapy, Israeli health services, AA and NA. These measures sufficiently reduced the risk to the children.
3. The evidence did not establish a sufficiently grave risk of physical harm from the conflict. The children had lived in Israel throughout their lives, and the evidence did not show that their proposed home town exposed them to an exceptional level of danger compared with other Israeli children. Article 13(b) was therefore not made out.
4. Children’s objections. C expressed a longer-term preference to remain in England but did not object to return. B wished to remain in England while the conflict continued, but the court accepted that he lacked sufficient maturity to understand and weigh the wider implications of that position. The Article 13 objection discretion therefore did not arise.
5. Even if B’s objection had crossed the gateway, the court would have exercised its discretion in favour of return. The children’s established relationships with their father and paternal family, their Israeli identity and the Convention’s return objective outweighed the objections in the circumstances.
6. The court ordered return to Israel, but not immediately. The children could complete the summer term in England and were to return with their mother in the last week of July 2025, and in any event before the end of that month. A visit to Israel during the May half-term was considered appropriate. The order was an interim Convention decision and did not determine the children’s long-term future.