A & B (Hague Convention 1980: Art 13(b)), Re

In a summary application under article 13(b) of the Hague Convention 1980, the court must assess the maximum reasonably supported risk to each child on return, while respecting the limits of summary proceedings. Serious allegations need not be resolved by a full fact-finding hearing, but they must be evaluated and do not, by themselves, establish the defence. The court must separately assess whether the taking parent is likely to return, the circumstances with or without that parent, and whether protective measures would sufficiently mitigate the risk. Relevant risks may include separation, coercive or controlling abuse, parental conflict, harm to the taking parent affecting parenting capacity, and practical or legal consequences of return. Where grave risk remains, the court may refuse return.

The applicant father sought the summary return of his two children to Cyprus under the Hague Convention 1980. The respondent mother had retained the children in England and relied on article 13(b), alleging serious coercive, controlling, physical and sexual abuse by the father, abuse of the children, failure by Cypriot authorities to protect them, and a likely deterioration in her mental health if required to return.

The allegations had not been tested by a fact-finding court. The court considered written and expert evidence, including evidence about the mother’s stated refusal to return, the children’s circumstances, Cypriot family-law procedures and available protective measures. The central issue was whether return would expose either child to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation, and whether that risk could be sufficiently addressed.

1. Application refused. The article 13(b) defence was established on the balance of probabilities. The court declined to exercise its discretion to order the children’s return to Cyprus.
2. The court applied the summary approach in Re E (Children) (Custody Appeal) [2011] UKSC 27. It did not conduct a full fact-finding exercise. It evaluated the evidence sufficiently to assess the risk, assumed the mother’s allegations against the father at their maximum reasonably supported level where they could not confidently be discounted, and then considered whether protective measures could mitigate the risk.
3. The mother’s refusal to return was not treated as a binary issue of fact or accepted automatically. Following In re R [2024] EWCA Civ 1296, the court assessed the likelihood of her return by considering the circumstances, family history, professional evidence, her mental health, her reasons, possible tactical considerations and whether her position might change after an order. It concluded that she would probably return with the children because of her fear for their safety. Oral evidence was not necessary or proportionate.
4. The allegations of abuse of the mother, including sexual abuse, could not confidently be discounted and had to be included in the maximum-risk assessment. Allegations of sexual abuse of the children were insufficiently supported and were disregarded. The children were nevertheless treated, for risk-assessment purposes, as potential victims of domestic abuse through exposure to abuse of their mother and alleged coercive or controlling behaviour directed towards them.
5. If the mother returned, the children faced the combined risks of unstable accommodation, hostile litigation, exposure to the father and alleged continuing coercive control, possible separation from their mother on re-entry, deterioration in the mother’s mental health and reduced parenting capacity, and harmful parental conflict. If she did not return, the children faced separation from their primary carer, disruption, cross-border loss of contact, and likely placement with the father, with the assumed risk of further coercion and manipulation.
6. The proposed protective measures were insufficient. English orders could be made, but their recognition and enforcement in Cyprus, and the timing and scope of Cypriot rules of court or orders, were uncertain. Measures directed against threats, harassment or molestation would not adequately address the assumed risk of insidious coercion and control. Therapy and treatment in Cyprus might reduce some risk but could not address the wider personal, financial, practical and relational factors.
7. Return would expose each child to a grave risk of psychological harm and place both children in an intolerable situation, whether or not the mother returned. It was a rare case in which the article 13(b) defence was established and no return order was made.