BN (A Child)(Abduction: Art 13(b)), Re

Article 13(b) requires a focused assessment of the future situation facing the child on return. The defence has a high threshold, but the court must evaluate disputed allegations sufficiently to decide whether a grave risk exists. Risk may arise from the effect of return on a parent’s mental health and consequent ability to care for the child, even where the parent’s anxieties are partly subjective. Protective measures must be scrutinised for their practical efficacy, including duration, enforceability and consequences of non-compliance. Measures normally directed to the period before the first hearing in the state of habitual residence may be insufficient where the risk is likely to persist. Where return itself would intensify a parent’s trauma and place the child at grave risk, protective measures may be incapable of ameliorating the risk.

The father applied under the 1980 Hague Convention for the summary return of his two-year-old son from England to Connecticut. The child had lived in Connecticut since birth and his retention in England was accepted to be wrongful. The mother relied on Article 13(b), alleging sustained domestic abuse and contending that return would seriously worsen her diagnosed PTSD or complex PTSD, impairing her ability to parent the child. The father disputed the allegations and proposed protective measures, including accommodation, financial support, restrictions on contact and arrangements for a temporary custody order. The central issues were whether return created a grave risk of harm or an intolerable situation, and whether the proposed protective measures could sufficiently address that risk.

1. Article 13(b) threshold. The application of the defence required the court first to consider whether, if the mother’s allegations were true, return would expose the child to a grave risk of physical or psychological harm or place him in an intolerable situation. The judge accepted the mother’s account of serious and sustained domestic abuse, coercive control and financial abuse, substantially corroborated by video evidence. The alleged risk was not capable of being confidently discounted.
2. Mental-health risk. The judge accepted the expert evidence that the mother was suffering from PTSD, probably complex PTSD, and that return would re-expose her to the environment of trauma, worsen her condition and impair her ability to parent. That created a grave risk to the child of psychological harm or an intolerable situation. The source of the mother’s anxieties was not determinative where their consequences for the child were sufficiently serious.
3. Protective measures. The proposed measures were assessed by reference to their practical efficacy. The judge considered that the proposed financial provision was insufficient, that the father should not know the mother’s address before the Connecticut court had assessed the risks, and that protection from police and child-protection services would ultimately be reactive. More fundamentally, the immediate re-exposure to trauma, loss of the mother’s English support network and uncertainty after the first Connecticut hearing meant that the proposed measures could not ameliorate the identified risk.
4. The judge held, alternatively, that the particular circumstances required protection beyond the first hearing, including greater assurance concerning accommodation, legal fees, health insurance and financial support. The Article 13(b) defence was made out and the discretion to refuse return arose. The application for summary return was dismissed.

First-instance application under the 1980 Hague Convention. No appellate history is stated in the judgment.