A (A Child: Article 13(b): Mental Health)

Article 13(b) of the 1980 Hague Child Abduction Convention requires an assessment focused on the child. In a mental-health case, the court must assess the nature of the risk to the returning parent, its likelihood, and its consequences for the child. A serious risk of parental depression will not establish the exception unless the evidence shows a grave risk of harm to the child or an intolerable situation.

Allegations must be considered cumulatively, although distinct strands may properly be analysed separately. Where a potential grave risk is established, protective measures require scrutiny proportionate to the protection needed. The enforceability of undertakings is relevant but is not the only measure of their effectiveness.

The father applied for the summary return of B, aged four, to Australia under the 1980 Hague Child Abduction Convention, following the mother’s retention of him in England. The mother abandoned her habitual-residence and acquiescence defences and relied on Article 13(b).

She alleged domestic abuse and contended that returning to Australia would cause a serious deterioration in her mental health because of her parents’ ill-health. A jointly instructed psychiatrist considered that the mother was at serious risk of clinical depression, with possible consequences for her emotional availability to B.

Garrido J ordered B’s return. The mother appealed, alleging procedural unfairness because the psychiatrist did not give oral evidence, errors in the assessment of domestic abuse and mental-health risks, and an inadequate approach to protective measures. The central issue was whether Article 13(b) had been established.

1. Appeal dismissed. Moylan LJ, with whom Peter Jackson and Zacaroli LJJ agreed, held that the judge was entitled to find that the Article 13(b) exception was not made out.

2. The late service of Dr McDermott’s report meant that it would have been better to allow focused oral questions. The parties would ordinarily have been able to ask questions under r. 25.10 of the Family Procedure Rules 2010. However, the evidence was clear and there was no basis for concluding that oral evidence would materially have altered it. The process was therefore not unfair.

3. The court applied the approach in Re S and Re B (a child) (abduction: article 13(b): mental health) [2024] EWCA Civ 1595. It assessed the nature of the asserted risk to the mother, the likelihood of it materialising, and the consequences for B. The mother faced a serious risk of significant depression, but the suggested effect on parenting was conditional, unspecified and dependent upon depression being persistent and unresponsive to treatment. There was no evidence that treatment would be unavailable or ineffective in Australia. That evidence did not establish a grave risk of psychological harm to B or an intolerable situation.

4. The domestic-abuse allegations had to be considered cumulatively with the mother’s case as a whole, but they were a distinct strand because they did not feature in the psychiatric analysis. The judge correctly asked whether the allegations, if true, crossed the Article 13(b) threshold. He was entitled to find that they did not. Although the judge was wrong simply to state that a non-molestation undertaking would be enforceable, protective measures did not require determination for that strand once no threshold risk existed.

5. Protective measures may include general services as well as particular arrangements. Their effectiveness depends upon compliance and remedies for non-compliance, not enforceability alone. The closer the need for protection, the more exacting the scrutiny of the measures. Here, however, the evidence did not establish the threshold risk requiring protective measures to avert return.

• Court of Appeal (Civil Division): The mother’s appeal was dismissed and the return order was upheld.
• High Court of Justice, Family Division: On 28 April 2026, Garrido J ordered B’s summary return to Australia under the 1980 Hague Child Abduction Convention.