D v M & Anor (Art 13(b) Alleged Murder of Parent)

Under Art 13(b) of the 1980 Hague Convention, the court must assess whether allegations can confidently be discounted. If they cannot, it must consider the allegations at their highest, determine whether they establish a grave risk, and then assess whether protective measures can sufficiently manage that risk.

Protective measures require concrete evidence of their availability, effectiveness, compliance and enforceability. Bare proposals or reliance on comity are insufficient where the risk is exceptional and the child’s needs are complex. Where Art 13(b) is established and adequate protection cannot be demonstrated, the court will ordinarily refuse summary return and should not make a suspended order merely to permit indefinite further enquiries.

The father applied under the Child Abduction and Custody Act 1984 for the summary return of his seven-year-old son, S, to the United States under the 1980 Hague Convention. S had been habitually resident in the United States and his retention in England and Wales was accepted to be wrongful.

The application was resisted by S’s maternal grandmother, with whom he lived. She relied on Art 13(b), alleging that the father was implicated in the killing of S’s mother in India, which S had witnessed. The father’s application was issued more than one year after retention, but the court did not determine settlement under Art 12 because the Art 13(b) issue was decisive.

Application dismissed. The court found that S’s return to the United States would expose him to a grave risk of physical and psychological harm or otherwise place him in an intolerable situation, and that no adequate protective measures had been established.

1. The court applied the approach in Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144. It was not required to determine whether the mother had in fact been murdered or whether the father was responsible. It had to undertake a summary but evaluative assessment of the evidence.
2. The evidence could not confidently discount the possibility of an Art 13(b) risk. Taking the allegations at their highest, the evidence concerning the mother’s injuries and death, the paternal grandparents’ statements, S’s account, the father’s implication in the Indian criminal proceedings, and the uncertainty surrounding his immigration status established the necessary grave risk.
3. Return would remove S from his extended family and established therapeutic and educational support and place him in the jurisdiction where the person he believed responsible for his mother’s murder lived. If not returned to the father, he would require state care in the United States. Those circumstances themselves created grave psychological risk and intolerability.
4. The proposed protective package was contained only in counsel’s position statement. There was no evidence that the measures could be implemented, would be effective, or would be enforceable. The court required concrete evidence and applied heightened scrutiny because the measures were relied on to meet an exceptional risk. A bare reliance on the competence of United States agencies and comity was insufficient.
5. Although an adjournment may be appropriate where information about protective measures is insufficient, it was not appropriate here because the father had had ample time to provide evidence and there was no basis for confidence that further enquiries would resolve the deficiencies. A suspended return order for an indeterminate period was also inappropriate. The residual discretion to return S despite Art 13(b) being established was not exercised. No order was made as to costs.