J v K

In an application for summary return under the 1980 Hague Convention, the court should adopt a two-stage approach to the Article 13(b) defence. It should first assess the alleged risk at its highest, considering multiple allegations cumulatively. If the grave-risk threshold is met, it should then assess whether effective protective measures would sufficiently reduce the risk on return.

The assessment must address the concrete situation the child would face. Exposure to a pattern of coercive or controlling behaviour towards a parent may constitute psychological harm to the child. Protective measures must be effective and enforceable. Where necessary, a mirror order should be obtained before return, and the measures should last long enough to provide genuine protection in the particular circumstances.

The father applied for the summary return of the parties’ 15-month-old child to Portugal under the Child Abduction and Custody Act 1985 and Article 13(b) of the 1980 Hague Convention. The mother opposed return, relying on alleged coercive and controlling behaviour, domestic abuse, financial dependency, risks to her mental health and the possibility of separation from the child.

The court considered whether those matters established a grave risk of physical or psychological harm or an intolerable situation, and, if so, whether protective measures proposed by the father could sufficiently ameliorate that risk. It also considered whether return should be to a particular Portuguese town under Article 11 of the 1996 Hague Convention.

1. Article 13(b) framework. The court adopted a two-stage process. First, it assessed the nature and severity of the anticipated risk on the assumption that the allegations were true and considered the allegations cumulatively. Secondly, having found the threshold crossed, it assessed whether the proposed protective measures would sufficiently ameliorate the risk below the level of grave risk: [2011] UKSC 27; [2022] EWHC 1216 (Fam); [2023] EWCA Civ 1415.
2. The evidence, taken at its highest, disclosed a pattern of humiliating, belittling and controlling behaviour, including allegations of locking the mother and child in the home and physical aggression. Such conduct fell within the concept of domestic abuse. A child exposed to that pattern would face a grave risk of psychological harm: [2021] EWCA Civ 998; [2022] 1 WLR 2681.
3. The risks arising from the father’s Portuguese applications and criminal complaint had dissipated because he undertook to withdraw the criminal proceedings, not to institute further proceedings and not to remove the child from the mother’s care. Financial dependency nevertheless had to be assessed in the context of coercive control.
4. Effective protective measures required separate accommodation, financial support, medical insurance, a car, a mobile phone, restrictions on contact and attendance, withdrawal of the criminal complaint, and protection against removal of the child. A mirror order had to be obtained in Portugal before return so that the measures were enforceable and effective.
5. The measures were to last for six months. The period had to provide sufficient certainty for the mother to re-establish herself and make appropriate applications, while remaining time-limited. The court declined to order return specifically to town X under Article 11 of the 1996 Hague Convention.
6. The child was ordered to return to Portugal forthwith on registration of the order in Portugal, with both parties required to do all they could to expedite registration.

Directions hearings were held before Peel J and Nicholas Allen KC sitting as a Deputy High Court Judge. No appeal or earlier judgment is stated.