M v F (Art 13 Thresholds Not Met)

In Hague Convention child-abduction proceedings, the child-objections exception requires more than a preference to remain in the requested State. The child must object to returning to the State of habitual residence, and the objection must be assessed at a straightforward gateway stage before any discretion is exercised.

Under Article 13(b), the court must consider whether the allegations, assumed at their highest but assessed for detail and substance, could establish grave risk. The court need not accept bare or unsupported allegations unquestioningly. If the threshold is not reached, protective measures need not be examined. A return order may be made while its implementation is delayed by pending protection claims. During that period, Article 11 of the 1996 Hague Convention may confer jurisdiction to make urgent protective orders where delay creates a risk of irreparable harm or compromised protection.

The mother applied under the Child Abduction and Custody Act 1985 for the summary return of two children to Brazil under Article 12 of the 1980 Hague Convention. The children had been wrongfully removed from Brazil by their paternal grandmother after an earlier removal from Saudi Arabia by their father.

The removal, habitual residence, custody rights and the application within one year were not disputed. The respondents relied on the child-objections exception in relation to the older child and on Article 13(b), alleging psychological harm, threats, harassment and sexual abuse. The children were also the subject of pending protection appeals, raising issues concerning implementation and interim protection.

1. Return order. The mother’s application was allowed. A summary return order was made under Article 12 of the 1980 Hague Convention in respect of both children.
2. Child objections. The court applied the two-stage approach in Re M (Republic of Ireland) (Child's Objections) [2015] EWCA Civ 26. The older child’s statements reflected a strong preference for the stability and relationships available in England. They were not an objection to returning to Brazil because they were unsupported by any specific concern about Brazil and lacked sufficient strength, conviction and rationality. In any event, the discretion would have been exercised in favour of return because the child’s views had been materially influenced by the paternal family, return was consistent with welfare, and refusal would separate the siblings.
3. Article 13(b). The court applied the approach in Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144, as clarified in subsequent authorities. The court assumed allegations at their highest but first assessed whether they were sufficiently detailed and substantial to constitute grave risk if true. The allegations concerning reunification, threats in Brazil and sexual abuse were vague, unsupported or contradicted by the evidence. The children’s positive response to contact with their mother and their relatively easy transition to her care further undermined the asserted risks. The Article 13(b) exception was not made out, and consideration of protective measures was unnecessary.
4. Implementation. Under G v G [2021] UKSC 9, the pending protection appeals prevented implementation while protection from refoulement continued. The return order was therefore to be implemented after withdrawal of the children’s claims or exhaustion of all legal challenges.
5. Interim protection. Section 5 of the Child Abduction and Custody Act 1985 did not provide continuing jurisdiction after determination of the return application. Article 11 of the 1996 Hague Convention did apply despite Brazil not being a contracting State. The pending appeals created urgency, and orders were made requiring the children to remain with their mother and prohibiting their removal until the Brazilian authorities had taken the measures required by the situation.
6. The paternal grandmother was directed to confirm within seven days whether she would withdraw the children’s protection claims. There was no order as to costs, save for detailed assessment of publicly funded costs.