F v M

In a summary return application under the 1980 Hague Convention, the Article 13(b) exception requires examination of the concrete situation the child would face on return. Allegations must be assessed cumulatively and evaluated within the limits of summary proceedings. The court need not determine their truth, but must assess whether the evidence permits the possibility of grave risk to be confidently discounted. If risk is identified, protective measures, including undertakings and safeguards by authorities in the requesting State, must be practically effective. Formal willingness to act may be insufficient where measures are difficult to police, take time to operate, or cannot prevent serious harm behind closed doors.

The father applied for the summary return of his nine-year-old son, B, to Spain under Article 12 of the 1980 Hague Convention. The mother accepted that B had been wrongfully retained but relied on Article 13(b), alleging long-standing domestic abuse, substance misuse and harmful conduct towards the children. She said that she would not return to Spain. A psychiatric report recorded post-traumatic stress disorder arising from her experiences.

The father denied the allegations and offered undertakings concerning alcohol, drugs, violence and contact arrangements. Information had been obtained from the Spanish authorities after an adjournment. The central issues were whether return would expose B to a grave risk of physical or psychological harm or an intolerable situation, and whether protective measures would sufficiently ameliorate that risk.

Application refused. The court refused the father's application for B's summary return to Spain. The Article 13(b) exception was made out. The question of B's longer-term residence and welfare was left for a full welfare hearing.

1. The court applied the framework summarised in Re IG (Child Abduction: Habitual Residence: Article 13b) [2021] EWCA Civ 1123, including the high threshold and child-focused nature of Article 13(b). The court had to examine the concrete situation that would exist on return. The summary process did not permit final determination of disputed allegations, but required an evaluative assessment of their detail, substance and cumulative effect. The approach in Re A (A Child) Article 13(b) [2021] EWCA Civ 939 and the cumulative assessment required by Re B (Abduction: Consent: Oral Evidence) [2022] EWCA Civ 1171 were followed.
2. The mother would not return to Spain, so B would return to live with his father and sister. The allegations of violence, chronic alcohol and drug misuse, disinhibited conduct and abusive behaviour were detailed and substantial. Although some evidence came from A and B wished to return, the court could not confidently discount the possibility of the alleged situation. Exposure to drunken, disinhibited and violent behaviour by a parent would place B at grave risk of psychological, and potentially physical, harm and in an intolerable situation.
3. The court then considered protective measures, applying the approach in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 and [2012] 1 AC 144, and Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415. Undertakings concerning alcohol, drugs and treatment of the children would be difficult to police or enforce behind closed doors. The Spanish authorities were on notice and were expected to act if necessary, consistently with G v D (Article 13(b) Absence of Protective Measures [2021] 1 FLR 36. However, authority intervention could take time and might not prevent serious harm before sufficient evidence emerged. The measures therefore did not sufficiently ameliorate the risk.
4. The high threshold was met and the court exercised its discretion to refuse summary return. The decision did not determine whether B should ultimately live in Spain or England; that issue required a full welfare hearing where the allegations could be tested.