G (A Child) (Abduction: Article 13(b): Mental Health), Re

Article 13(b) of the 1980 Hague Convention requires a child-focused, future-looking assessment of grave risk on return, rather than a welfare determination. The risk may arise from the removing parent’s mental deterioration or from separation from a primary carer, even where the parent’s anxiety has an objectively weak foundation. The court should closely assess whether the parent will accompany the child and test proposed protective measures against the concrete circumstances on return. If grave risk is established and protective measures cannot prevent it, the court retains a discretion but will ordinarily decline to order return.

NV applied for a summary return of G, aged six, to Country A after AM removed him to Country B. AM ultimately accepted habitual residence, custody rights and lack of consent, and relied on Article 13(b) of the 1980 Hague Convention. Her case principally concerned separation from G, her inability to return, and deterioration in her mental and physical health. The court considered psychiatric evidence and proposed protective measures.

The central questions were whether the asserted risks met the grave-risk threshold and, if so, whether return should nevertheless be ordered. The judge found that AM was unlikely to return and that either separation or return would expose G to the required risk.

1. Disposition. The father’s application for G’s summary return under Article 13(b) of the 1980 Hague Convention was refused. No return order was made.
2. Applicable approach. The judge adopted the risk-based approach in Re A & B (Hague Convention: 1980: Art 13(b)) [2026] EWHC 1763 (Fam). Article 13(b) required assessment of the child’s circumstances on return, not a welfare determination. The burden was on the person opposing return, on the balance of probabilities. The risk had to be grave, and an intolerable situation was one which the particular child should not be expected to tolerate, applying Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 and Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10.
3. Parental mental health and non-return. A parent’s anxiety could create an intolerable situation for the child whether or not the anxiety was objectively reasonable, although its objective basis remained relevant. Separation from a primary carer could itself establish grave risk. The judge closely scrutinised AM’s assertion that she would not accompany G, applying the approach in R (Child Abduction: Parent's Refusal to Accompany) [2024] EWCA Civ 1296. The totality of the evidence, including the medical opinion, family history, reasons for refusal and settled status in Country B, made the assertion credible rather than tactical.
4. Evidence and alternative outcomes. Despite limitations in Dr Brow’s report, the judge accepted its conclusion that return to Country A, or separation from G, was likely to cause rapid deterioration, increased migraines, possible suicidality and impaired parenting. If AM did not return, G would be separated from his primary carer and exposed to complex contact arrangements. If she returned, her deterioration would itself create grave risk. Protective measures could not prevent those risks.
5. Discretion and final directions. Once Article 13(b) was established, the court retained a discretion but declined to exercise it, applying Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619. The judgment was authorised for publication subject to strict anonymisation. The agreed provision of no order as to costs remained in place unless AM made a formal application by 4pm on 28 August 2026.

not stated in the judgment.