C v D

In an application for summary return under Article 13(b) of the 1980 Hague Convention, the court must assess the grave risk to the children on the evidence taken at its highest where reliable fact-finding is unavailable. The assessment must address the nature and substance of the allegations, the likely effect of return on the primary carer, and what will concretely face the children on return.

Protective measures must be practically effective. Assurances that do not adequately address enforceability, housing, finances, litigation and the primary carer’s mental health may fail to ameliorate the risk. Where the threshold is met and the risk cannot be ameliorated, the discretion to order return will rarely, if ever, properly be exercised in favour of return.

The father applied under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the summary return to the USA of two children wrongfully removed from California by their mother.

The mother accepted the wrongful removal but relied on Article 13(b), alleging serious domestic abuse, coercive and controlling behaviour, and a grave risk that return would cause psychological harm to the children through deterioration in her mental health. She withdrew a separate child-objections defence before the final hearing.

The central issues were whether the Article 13(b) threshold was met, whether the father’s proposed protective measures sufficiently ameliorated the risk, and whether the court should nevertheless exercise its discretion to order return.

1. Article 13(b) threshold. The court applied the established approach in Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27 and Re S (A Child) [2012] 2 AC 257. The burden lay on the mother. Where oral evidence and fact-finding are unusual, the allegations were taken at their highest unless they could confidently be discounted. The allegations were of the highest order and could not confidently be discounted.
2. The court found it more likely than not that return would materially deteriorate the mother’s mental health and impair her ability to care for the children. The central risk was that the children’s primary carer would be unable to meet their needs and that the father, against whom serious allegations had been made, might become their carer before those allegations were investigated. That amounted to a grave risk of psychological harm or an intolerable situation.
3. The court applied the guidance in Re S (Abduction: Rights of Custody) [2012] UKSC 10, Re A-M (A Child: 1980 Hague Convention) [2021] EWCA Civ 998 and Re GP [2017] EWCA Civ 1677. The assessment required reasoned and reasonable assumptions based on the nature, detail and substance of the allegations, and examination of what would concretely face the children on return.
4. Protective measures. Following Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415, measures had to be genuinely effective. The proposed assurances did not adequately address enforceability in California, the mother’s inability to fund or participate safely in contested litigation, the inadequacy of housing and financial provision, or the likely deterioration in her mental health. The grave risk therefore remained.
5. The court recognised, consistently with Re K (1980 Hague Convention: Lithuania) [2015] EWCA Civ 720, that the usual process need not be followed where the evidence permits the allegations to be confidently discounted. That exception did not apply here.
6. Having found an unameliorated Article 13(b) risk, the court applied the discretionary guidance in In re S (A Child) (Abduction: Rights of Custody) [2010] UKSC 10. It dismissed the father’s application for return.