Q and R (Children) (Abduction: Article 13(b)), Re

Under Art 13(b) of the 1980 Hague Convention, the court must assess the situation that would confront the child on return, including the availability and effectiveness of protective measures. A grave risk may be established on the basis of serious allegations and supporting evidence even where the summary process does not permit final findings of fact. Protective measures must address the particular risk and be sufficiently reliable and effective. Under the child-objections exception, the court first decides whether the child objects and has sufficient age and maturity. If so, the discretion to order return is at large, but Convention objectives, welfare, the authenticity and strength of the objections, and the evidential context must be considered.

The father applied under the 1980 Hague Convention for the summary return of Q, aged 14, and R, aged 11, from England to Italy. It was common ground that the children had been habitually resident in Italy, that their removal by the mother was wrongful, and that the father was exercising rights of custody.

The mother and Q opposed return under Art 13(b), relying on allegations of serious domestic abuse, violence and coercive control, and under the child-objections exception. Q and R had lived in England with their mother and adult sister for more than a year. The central issues were whether return would expose the children to a grave risk of harm, whether proposed protective measures would sufficiently address that risk, and whether the children’s objections justified refusing return.

1. Art 13(b). The application was dismissed because the mother and Q established a grave risk of physical and psychological harm. The court could not make final findings of fact in the summary proceedings, but it was required to undertake an evaluative assessment of the evidence. The detailed allegations, corroborative material and evidence that the children had themselves experienced or witnessed abuse met the high threshold.
2. The relevant question was the situation the children would face on an immediate return to Italy. The proposed protective measures had to be assessed for both compliance and effectiveness. The father’s late withdrawal of previously offered financial support undermined confidence in his other undertakings. His previous police complaints, stated wish that the mother be punished, proposed return to the former matrimonial home, continuing controlling behaviour and the reactive nature of any Italian protection meant that the risk would not be sufficiently ameliorated.
3. The absence of the adult daughter, who had previously acted as a protective factor, further increased the risk. The court concluded that the proposed measures fell far short of what was required. It also observed that, if the mother refused to return and the children would instead live with the father, no protective measures could meet the obvious grave risk arising, particularly in light of Q’s allegations of inappropriate touching.
4. Child objections. The court would also have dismissed the application under this exception. Q and R genuinely objected to return, rather than merely expressing a preference, and were of an age and maturity at which their views should be taken into account. The resulting discretion was at large, subject to Convention considerations and welfare factors.
5. The children’s strongly held and independently formed views were supported by the evidential picture of domestic abuse and coercive control. Q’s age, stability in England and consistent objections justified giving substantial weight to her views. Although R was younger and less forceful in expression, the court would not separate the siblings by ordering her return when Q’s return was refused. The father’s application was dismissed.