“The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their “home”, but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed…”
“63. The law in respect of the defence of harm or intolerability under Article 13(b) was considered by the Supreme Court in Re E (citation above). In E v D (Return Order)[2022] EWHC 1216 (Fam) MacDonald J helpfully summarised the applicable principles arising from that decision as follows at §§29-30: "i) There is no need for Art 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of Art 13 are quite plain and need no further elaboration or gloss. ii) The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process. iii) The risk to the child must be 'grave'. It is not enough for the risk to be 'real'. It must have reached such a level of seriousness that it can be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two. iv) The words 'physical or psychological harm' are not qualified but do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation'. 'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'. v) Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. Where the risk is serious enough the court will be concerned not only with the child's immediate future because the need for protection may persist. vi) Where the defence under Art 13(b) is said to be based on the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child's situation would become intolerable, in principle, such anxieties can found the defence under Art 13(b). "i) There is no need for Art 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of Art 13 are quite plain and need no further elaboration or gloss. ii) The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process. iii) The risk to the child must be 'grave'. It is not enough for the risk to be 'real'. It must have reached such a level of seriousness that it can be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two. iv) The words 'physical or psychological harm' are not qualified but do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation'. 'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'. v) Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. Where the risk is serious enough the court will be concerned not only with the child's immediate future because the need for protection may persist. vi) Where the defence under Art 13(b) is said to be based on the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child's situation would become intolerable, in principle, such anxieties can found the defence under Art 13(b). 30. In Re E, the Supreme Court made clear that in examining whether the exception in Art 13(b) has been made out, the court is required to evaluate the evidence against the civil standard of proof, namely the ordinary balance of probabilities whilst being mindful of the limitations involved in the summary nature of the Convention process. Within the context of this tension between the need to evaluate the evidence against the civil standard of proof and the summary nature of the proceedings, the Supreme Court further made clear that the approach to be adopted in respect of the harm defence is not one that demands the court engage in a fact-finding exercise to determine the veracity of the matters alleged as grounding the defence under Art 13(b). Rather, the court should assume the risk of harm at its highest and then, if that risk meets the test in Art 13(b), go on to consider whether protective measures sufficient to mitigate harm can be identified." 64. Moylan LJ in Re C[2021] EWCA Civ 1354 emphasised that the risk to the child must be a future risk (§§49-50). He cited from the Good Practice Guide to emphasise that: "…forward-looking does not mean that past behaviours and incidents cannot be relevant to the assessment of a grave risk upon the return of the child to the State of habitual residence. For example, past incidents of domestic or family violence may, depending on the particular circumstances, be probative on the issue of whether such a grave risk exists. That said, past behaviours and incidents are not per se determinative of the fact that effective protective measures are not available to protect the child from the grave risk." 65. Thus, an assessment needs to be made of the: "…circumstances as they would be if the child were to be returned forthwith. The examination of the grave risk exception should then also include, if considered necessary and appropriate, consideration of the availability of adequate and effective measures of protection in the State of habitual residence (§50)" He added: "It is also axiomatic that the risk arising from the child's return must be grave. Again quoting from Re E, at [33]: "It must have reached such a level of seriousness as to be characterised as 'grave'". As set out in Re A[2021] EWCA Civ 939 , at [99], this requires an analysis "of the nature and degree of the risk(s)" in order to determine whether the required grave risk is established (emphasis in the original)." 66. In Re S (A Child) (Abduction: Rights of Custody)[2012] 2 AC 257 Lord Wilson held that the methodology articulated in Re E formed "part of the court's general process of reasoning in its appraisal of a defence under the article" (at §22), which process will include evaluation of the evidence before the court in a manner commensurate with the summary nature of the proceedings. It follows that when evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the 1980 Hague Convention process. There is a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true (see Re E at §32 and §36). 67. As a result, in a case where allegations of domestic abuse are made, the courts have adopted a pragmatic solution which is first to ask whether, if the allegations are true, they would potentially establish the existence of a grave risk within the scope of Article 13(b) and, if so, the court must then ask how the child can be protected against the risk (Re E at §36, Re A[2021] EWCA Civ 939 at §96, Re C (citation above) at §63, Re AM (A Child) (1980 Hague Convention)[2021] EWCA Civ 998 at §32 and see also the Guide to Good Practice Part IV, Article 13(b) dated 2020 at §§40-41). 68. If a potential grave risk is made out at the first stage, the court then determines whether the grave risk exception is established by reference to all the circumstances of the case (see Guide to Good Practice at §41 and ReA (citation above) at §94). This second stage requires a proper evaluation of the sufficiency and efficacy of any protective measures with a view to determining whether the nature and extent of those measures addresses or sufficiently ameliorates the risk(s) which the allegations potentially create (Re. B (Children)[2022] EWCA Civ 1171 at §§71-72). 69. Although it is not necessary, it is preferable for the judge to adopt this two-stage process under Article 13(b), as emphasised by the Court of Appeal in Re B (citation above) at §71. As Moylan LJ stated in Re C (citation above) at §58: "…unless the court properly analyses the nature and severity of the potential risk which it is said will arise if the child is returned to the requesting State, the court will not be in a position properly to assess whether the available protective measures will sufficiently address or ameliorate that risk such that the grave risk required by Article 13(b) will not have been established. As set out in Re E, at [36], the question the court is considering is "how the child can be protected against the risk" (my emphasis). The whole analysis is contextual and forms part of the court's process of reasoning, as referred to by me in Re A, at [97], adopting this expression from Re S (A Child) (Abduction: Rights of Custody)[2012] 2 AC 257 ." 70. As made clear by Lady Hale and Lord Wilson in Re E at §52 "The clearer the need for protection, the more effective the measures will have to be." 71. If a number of different allegations are made, the judge should consider the cumulative effect of the allegations as a whole, not individually, before evaluating the nature and level of risk. While there may be distinct strands which have to be analysed separately the court must not overlook the cumulative effect of the allegations for the purpose of evaluating the nature and level of any grave risk(s) that might potentially be established as well as the protective measures to address such risks (Re. B (citation above) at §70). 72. Within this context, the assumptions made with respect to the maximum level of risk must be reasoned and reasonable assumptions based on an evaluation that includes consideration of the relevant admissible evidence that is before the court, albeit an evaluation that is undertaken in a manner consistent with the summary nature of proceedings under the 1980 Hague Convention (see Uhd v McKay[2019] 2 FLR 1159 at §70, as approved by the Court of Appeal in Re A (citation above) at §94 and Re AM (citation above) at §34). While the judge should be careful when conducting a paper evaluation, and should not, for example, discount allegations of physical or emotional abuse merely because they have doubts about their validity or cogency (Re A (citation above) at §95) it does not mean that there should be no assessment of the credibility or substance of the allegations (Re C (Children) (Abduction: Article 13(b))[2018] EWCA Civ 2834 per Moylan LJ at §39 relying on Re K (1980 Hague Convention: Lithuania)[2015] EWCA Civ 720 at §§52-53). 73. It follows that when conducting the analysis at the first stage the Judge will have to consider whether 'the evidence before the court enables [them] confidently to discount the possibility that the allegations give rise to an article 13(b) risk' (see Re. K (citation above) at §§52-53; Re A (citation above) at §94 and Re AM (citation above) at §33). If that assessment can be made then a grave risk will not be established and the defence will not have been made out. 74. In his judgment in E v D (citation above) at §32 and §33 MacDonald J helpfully identified the following principles in determining whether protective measures, including those available in the requesting State beyond the protective measures proposed by one or both parties, can meet the level of risk reasonably assumed to exist on the evidence. These principles can be drawn from the Court of Appeal decisions concerning protective measures in Re P (A Child) (Abduction: Consideration of Evidence)[2018] 4 WLR 16 , Re C (Children) (Abduction: Article 13(b))[2019] 1 FLR 1045 and Re S (A Child) (Hague Convention 1980: Return to Third State)[2019] 2 FLR 194 : "i) The court must examine in concrete terms the situation that would face a child on a return being ordered. If the court considers that it has insufficient information to answer these questions, it should adjourn the hearing to enable more detailed evidence to be obtained. ii) In deciding what weight can be placed on undertakings as a protective measure, the court has to take into account the extent to which they are likely to be effective both in terms of compliance and in terms of the consequences, including remedies, in the absence of compliance. iii) The issue is the effectiveness of the undertaking in question as a protective measure, which issue is not confined solely to the enforceability of the undertaking. iv) There is a need for caution when relying on undertakings as a protective measure and there should not be a too ready acceptance of undertakings which are not enforceable in the courts of the requesting State. v) There is a distinction to be drawn between the practical arrangements for the child's return and measures designed or relied on to protect the children from an Art 13(b) risk. The efficacy of the latter will need to be addressed with care. vi) The more weight placed by the court on the protective nature of the measures in question when determining the application, the greater the scrutiny required in respect of their efficacy. 33. With respect to undertakings, what is therefore required is not simply an indication of what undertakings are offered by the left behind parent as protective measures, but sufficient evidence as to extent to which those undertakings will be effective in providing the protection they are offered up to provide." 75. In Re C (citation above) Moylan LJ emphasised the importance of adherence to Practice Guidance: Case Management and Mediation of International Child Abduction Proceedings issued by Sir James Munby P on13 March 2018 , and to the point that protective measures include not only those offered by the left-behind parent but also those available ordinarily in the state of habitual residence and their adequacy and effectiveness (§60). He endorsed what MacDonald J said in G v D (Absence of Protective Measures)[2020] EWHC 1476 (Fam) at §39, namely: "Finally, it is well established that courts should accept that, unless the contrary is proved, the administrative, judicial and social service authorities of the requesting State are equally as adept in protecting children as they are in the requested State (see for example Re H (Abduction: Grave Risk)[2003] EWCA Civ 355 ,[2003] 2 FLR 141 , Re M (Abduction: Intolerable Situation)[2000] 1 FLR 930 and Re L (Abduction: Pending Criminal Proceedings)[1999] 1 FLR 433 ). In this context I note that Lowe et al observe in International Movement of Children: Law, Practice and Procedure (Family Law, 2nd edn), at para 24.55 that: 'Although, as has been said, it is generally assumed that the authorities of the requesting State can adequately protect the child, if it can be shown that they cannot, or are incapable of or, even unwilling to, offer that protection, then an Art 13(b) case may well succeed. It seems evident, however, that it is hard to establish a grave risk of harm based on speculation as opposed to proven inadequacies in the particular cases." 76. If a potential grave risk is identified which cannot be negated by any protective measures, then the Supreme Court in Re E held that a court must do 'the best it can' to resolve the disputed allegations (see §36).”
“44. Protective measures may be available and readily accessible in the State of habitual residence of the child or, in some cases, may need to be put in place in advance of the return of the child. In the latter case, specific protective measures should only be put in place where necessary strictly and directly to address the grave risk. They are not to be imposed as a matter of course and should be of a time-limited nature that ends when the State of habitual residence of the child is able to determine what, if any, protective measures are appropriate for the child.”
“The law on the 'child's objection' defence underArticle 13 of the Convention is comprehensively set out in the judgment of Black LJ in Re M (Republic of Ireland)(Child's Objections)(Joinder of Children as Parties to Appeal)[2015] 2 FLR 1074 (and endorsed by the Court of Appeal in Re F (Child's Objections)[2015] EWCA Civ 1022 ). In summary, the position is as follows: i) The gateway stage should be confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. ii) Whether a child objects is a question of fact. The child's views have to amount to an objection before Article 13 will be satisfied. An objection in this context is to be contrasted with a preference or wish. iii) The objections of the child are not determinative of the outcome but rather give rise to a discretion. Once that discretion arises, the discretion is at large. The child's views are one factor to take into account at the discretion stage. iv) There is a relatively low threshold requirement in relation to the objections defence, the obligation on the court is to 'take account' of the child's views, nothing more. v) At the discretion stage there is no exhaustive list of factors to be considered. The court should have regard to welfare considerations, in so far as it is possible to take a view about them on the limited evidence available. The court must give weight to Convention considerations and at all times bear in mind that the Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned, and returned promptly. vi) Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are authentically the child's own or the product of the influence of the abducting parent, the extent to which they coincide or at odds with other considerations which are relevant to the child's welfare, as well as the general Convention considerations (Re M[2007] 1 AC 619 ). I also note that in some cases an objection to a return to one parent may be indistinguishable from a return to a country.”
“Hey Mum, I am changing my decision, I am staying with my dad, as he told you. I wrote in a letter I do not feel safe and comfortable with you. You bring unknown men to me without my knowledge and I don’t feel well and comfortable, you also gave me lots of mental problems. You are shouting at me, often without any proper reason. Please don’t do this to me like you did to [L] and don’t lock me up in some kind of a Children’s Home. If you can, give me my things and my cats as I love them (picture of a cat and 4 hearts). Please don’t be cross with me but I feel better with my dad. [Picture of 3 people and a love heart] [Picture of a figure on a house and a love heart]”
“Finally, it is well established that courts should accept that, unless the contrary is proved, the administrative, judicial and social service authorities of the requesting State are equally as adept in protecting children as they are in the requested State (see for example Re H (Abduction: Grave Risk)[2003] EWCA Civ 355 ,[2003] 2 FLR 141 , Re M (Abduction: Intolerable Situation)[2000] 1 FLR 930 and Re L (Abduction: Pending Criminal Proceedings)[1999] 1 FLR 433 ). In this context I note that Lowe et al observe in International Movement of Children: Law, Practice and Procedure (Family Law, 2nd edn), at para 24.55 that: ‘Although, as has been said, it is generally assumed that the authorities of the requesting State can adequately protect the child, if it can be shown that they cannot, or are incapable of or, even unwilling to, offer that protection, then an Art 13(b) case may well succeed. It seems evident, however, that it is hard to establish a grave risk of harm based on speculation as opposed to proven inadequacies in the particular cases.’” ‘Although, as has been said, it is generally assumed that the authorities of the requesting State can adequately protect the child, if it can be shown that they cannot, or are incapable of or, even unwilling to, offer that protection, then an Art 13(b) case may well succeed. It seems evident, however, that it is hard to establish a grave risk of harm based on speculation as opposed to proven inadequacies in the particular cases.’”
“31. … L’s views have been firmly expressed, and consistently so over a significant period of time. They do not appear to have been overly influenced by her father, and it is notable that the reasons she give all relate to her own experiences; she does not appear to be a mouthpiece for anyone else…”