X (a Minor) (Hague Convention 1980, Article 13(b); Article 13(2)), Re

Under Article 13(b) of the Hague Convention 1980, the grave-risk defence has a high threshold. The court must focus on the child’s situation on return, evaluate disputed allegations as far as the summary process permits, and consider whether protective measures can sufficiently address any risk.

Under Article 13(2), the court must first decide whether the child genuinely objects to return and has attained sufficient age and maturity for the views to be taken into account. If the gateway is satisfied, the resulting discretion is at large. The child’s objections are important but not determinative. The court must assess their nature, strength and authenticity, including the possible influence of the abducting parent, while giving proper weight to the Convention’s return objective and the child’s welfare.

The applicant mother sought the summary return of her 14-year-old son to South Africa under the Hague Convention 1980. The father opposed return, relying on Article 13(b), by reference to crime and wider conditions in South Africa, and Article 13(2), relying on the child’s objections.

The child had lived in South Africa with his mother and extended maternal family before travelling to England. The evidence included an earlier contested relocation judgment, a psychological assessment, statements from carers, and evidence concerning the father’s influence over the child and his relationship with both parents. The central issues were whether either Convention defence was established and, if the child-objections gateway was met, how the resulting discretion should be exercised.

1. Article 13(b). The alleged risks arising from conditions in South African society did not meet the grave-risk threshold. South Africa was the child’s home, and his mother, grandparents, uncle and wider family lived there. No protective measures had been sought or shown to be necessary. The defence therefore failed.
2. Article 13(2) gateway. The court applied the approach stated in Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26 and summarised in Re Q and V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490 (Fam). The gateway required a straightforward examination of whether the child objected to return, rather than merely expressing a preference, and had sufficient age and maturity for his views to be taken into account.
3. Discretion. The child’s objections were not determinative. The court considered their strength and authenticity, their relationship to welfare considerations, the Convention’s prompt-return objective, and the extent to which the child’s views had been shaped by the father. The caution in P (A Child) (Abduction: Child’s Objections) [2024] EWCA Civ 1569, referring to In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, confirmed that hearing a child’s views is distinct from giving effect to them.
4. The child had expressed strong objections, but the court found that his voice had been materially compromised by the father’s manipulation, litigation-driven influence and unhealthy emotional interdependence. The earlier findings of Recorder Ullstein, the psychological evidence and the carers’ evidence provided a secure factual basis for that conclusion. The court rejected the Guardian’s recommendation against return.
5. The court exercised its discretion in favour of return. The child’s relationships with his mother and maternal family had prospects of repair, and return offered greater emotional and therapeutic support. The return to South Africa was to be arranged expeditiously, with steps taken to ameliorate the child’s initial distress.

This was a first-instance application in the High Court (Family Division). The judgment referred to an earlier relocation decision by Recorder Ullstein dated 3 April 2018 and to related proceedings in the High Court, Johannesburg, but no appeal from the present decision was stated.