AF v AM

In a Hague Convention return application, the Article 13(b) exception requires the court to assess whether return would expose the child to a grave risk of physical or psychological harm or an intolerable situation. The assessment must consider the risks cumulatively and may include the effect of the return on the taking parent’s mental health and parenting. The court should assume an evidentially supported risk at its highest in summary proceedings, then examine whether concrete and effective protective measures would adequately address it. Protective measures must be scrutinised in practical terms, including housing, finance, support, enforceability and the consequences of non-compliance. Where the proposed measures do not sufficiently mitigate the cumulative risks, the court may exercise its discretion to refuse return.

The father applied under the 1980 Hague Convention for the summary return of D, aged three, from England to Australia. D had been habitually resident in Australia and his removal was accepted to be wrongful. The mother relied on the exceptions in Articles 13(a) and 13(b).

The Article 13(a) case concerned alleged acquiescence arising from the father’s communications, silence and delay. The Article 13(b) case relied cumulatively on alleged domestic abuse, the likely effect of return on the mother’s mental health and parenting, the risk of separation, and the illness of the maternal grandmother. The central issues were whether a grave risk or intolerable situation was established and whether the father’s proposed protective measures were sufficient.

1. Article 13(a). The mother had not established acquiescence. The relevant question was the father’s actual subjective state of mind, assessed principally from the circumstances and contemporaneous conduct. The email exchange, including the reference to speaking again in 2029, occurred shortly after the domestic violence protection order and in the context of the mother’s representation that the trip would last only four to six months. It was not clear and unequivocal conduct inconsistent with seeking return. Silence and inaction, in that context, were insufficient. The Article 13(a) defence therefore failed, applying Re H (Minors) (Abduction: Acquiescence) [1998] AC 72.
2. Article 13(b). The court adopted the established approach that the risk must be grave, that intolerability is assessed for this particular child in the particular circumstances, and that the court must consider the situation on immediate return. The risk may arise from the taking parent’s anxieties even where those anxieties are unreasonable, if their effect on mental health would make the child’s situation intolerable: Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 and Re S (A Child) (Abduction; Rights of Custody) [2012] UKSC 10.
3. The court was not required to conduct a detailed fact-finding exercise. It assessed the risk on the assumption that the allegations were true unless their capacity to create the relevant risk could confidently be discounted. The allegations of domestic abuse, the mother’s adjustment disorder and likely deterioration on return, the consequent effect on her parenting, and the possible separation from D were considered cumulatively. The risks were likely to arise on the balance of probabilities and their consequences would be extremely serious.
4. The protective measures had to be examined concretely. The court considered the proposed financial assistance, accommodation, benefits, medical support, undertakings and remedies for breach. The proposed accommodation with the father’s acquaintances lacked sufficient detail and was unsuitable in light of the mother’s mental health. The available funds would not reliably provide accommodation and support pending benefits or Australian proceedings, and immediate mental-health support was crucial.
5. The measures were sufficient in relation to some risks of domestic abuse while the mother remained in Australia, but they did not adequately address the cumulative risks, particularly the mother’s mental-health deterioration, inadequate housing and finance, and the prospect of separation if she returned to England to see her terminally ill mother. The Article 13(b) defence was established. The court exercised its discretion to refuse return and dismissed the father’s application.