G (A Child) (Abduction: Poland), Re

In summary-return proceedings under the 1980 Hague Convention, the court must determine whether the opposing parent establishes the grave risk required by Art 13(b), rather than decide the child’s long-term welfare. The assessment is forward-looking and focuses on the situation on return. Disputed allegations must be examined sufficiently to determine whether they could establish grave risk, while respecting the summary nature of the process. If such a risk is identified, the court must consider effective protective measures, including undertakings and safeguards available in the requesting state. General assertions, disruption inherent in return, and ordinary adjustment difficulties will not ordinarily satisfy the high threshold.

The mother sought the summary return of her four-year-old son to Poland under the 1980 Hague Convention. The child, his mother and extended family had moved from Ukraine to Poland after the Russian invasion. Following the parents’ separation, the father brought the child to England for an agreed short visit but retained him there without the mother’s consent.

The parties agreed that the child had been wrongfully retained in England and Wales, was habitually resident in Poland immediately before retention, and was being retained in breach of the mother’s custody rights. The father relied on Art 13(b), alleging neglect, developmental delay, risks associated with the maternal grandmother, and harm from the child’s return and disruption. The central issue was whether those matters established a grave risk of harm or an intolerable situation, individually or cumulatively.

1. Disposition. The application under the 1980 Hague Convention was granted and the child’s return to Poland was ordered. The decision was not a determination of the child’s long-term welfare, which remained for the Polish courts.
2. Applicable principles. The court applied the restricted purpose of summary-return proceedings described in B v B [2014] EWHC 1804 (Fam). The ordinary obligation is to return a wrongfully retained child so that the courts of the state of habitual residence can determine the child’s future. Art 13(b) is of restricted application and has a high threshold. The focus is the risk to the child on return, assessed on the ordinary balance of probabilities while recognising the limitations of summary proceedings.
3. Assessment of disputed allegations. Applying Re IG [2021] EWCA Civ 1123, the court first considered whether the allegations, if true, could establish grave risk. It then assessed concretely how the child could be protected. Oral evidence and cross-examination will rarely be appropriate, but the court must still undertake an evaluative assessment and consider whether the evidence permits the possibility of grave risk to be confidently discounted.
4. Application. The father’s allegations lacked sufficient detail and corroboration. The evidence did not establish that the maternal grandmother had placed the child at risk, that the mother had neglected him, or that the child’s speech and language delay created a grave risk. The child had received relevant therapy in Poland, and healthcare would remain available there. Disruption, a change of kindergarten, and readjustment to living with his former primary carer were ordinary consequences of return, not an intolerable situation.
5. Protective measures. In any event, the mother’s proposed undertakings not to prosecute the father, physically chastise or verbally abuse the child, or leave him with the maternal grandmother while she was drinking, together with the proposed resumption of therapy, were sufficient to ameliorate any risk. Polish child-protection measures could also be taken into account. The Art 13(b) defence therefore failed.