YM v ML

Article 13(b) of the Hague Convention requires a forward-looking assessment of the child’s situation on return. The court must consider the nature and likelihood of the alleged risk, its consequences for the child, and the effectiveness of any protective measures.

Immigration uncertainty may be relevant, but it does not automatically establish a grave risk or intolerable situation. The court must examine the position in concrete terms and may make a reasoned assessment of likelihood without conducting a full fact-finding exercise. Protective measures must be sufficiently effective, and may include financial, accommodation, medical and non-separation arrangements. On the evidence, the risks arising from behaviour, mental health and immigration status did not satisfy Article 13(b), and the child’s return was ordered subject to registered protective measures.

The father applied under the Child Abduction and Custody Act 1985, incorporating the Hague Convention 1980, for the summary return of the parties’ two-year-old child from England to Australia. The mother resisted the application on Article 13(b) grounds, relying on alleged domestic abuse, her mental health, and uncertainty concerning her Australian immigration status.

She initially raised habitual residence and acquiescence, but abandoned those defences. The hearing was adjourned so that expert evidence could be obtained on Australian immigration law. The central issue was whether return would expose the child to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation, and, if so, whether protective measures could sufficiently mitigate that risk.

1. Article 13(b) framework. The defence is focused on the future situation of the child on return. The court considered the allegations at their highest, assessed the nature and likelihood of the risks and their consequences for the child, and then considered protective measures where necessary.
2. Domestic abuse. Even taking the mother’s allegations of controlling, coercive, verbal and emotional abuse at their highest, they did not establish a grave risk to the child. The allegations were largely situational to the ended relationship, and contact could be regulated pending orders of the Australian courts.
3. Mental health. The mother’s return was likely to increase anxiety and depression, but her condition was capable of management through medication and the identified support. The evidence did not establish deterioration so serious that she would become emotionally or physically unavailable to the child. The risk therefore did not create an intolerable situation.
4. Immigration status. The mother and child held valid visas permitting entry and residence in Australia. The court could not determine future immigration events as facts, but could assess their likelihood summarily. It was likely that they would be admitted and that the mother would remain in Australia for sufficient time to make long-term applications concerning the child. Immigration uncertainty did not, on these facts, establish an Article 13(b) defence.
5. Cumulative assessment and protective measures. The three strands of the defence were considered cumulatively. Even if the threshold had been crossed, the protective package was sufficient, including independent accommodation, substantial financial provision, immigration costs, private medical insurance, regulated contact and orders preventing separation of the mother and child. The measures were to be made as orders and registered in Australia before return because foreign undertakings were not inherently enforceable there.
6. Disposition. The Article 13(b) defence was dismissed and a summary return order was made. The order would take effect six weeks after it was made or seven days after registration in Australia, whichever was later. The residual discretion to order return did not arise.