RA v LA (Art 13(b)) [2026] EWHC 1396 (Fam)

[2026] EWHC 1396 (Fam)Case No FD26P00131
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/06/2026
Before
MR JUSTICE MACDONALD
Between
RAApplicantLARespondent
Mr Michael Gration KC and Mr Harry Langford (instructed by Dawson Cornwell LLP) for ApplicantMs Lorna Meyer KC and Ms Maria Orme (instructed by Oasis Solicitors) for RespondentHearing Hearing dates: 8 June 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 12 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]RA (hereafter “the father”) applies under the Child Abduction and Custody Act 1984 for a return order under the 1980 Hague Convention in respect of M, born in Sweden and now aged 1 year old. The application is resisted by M’s mother, LA (hereafter “the mother”). The father is represented by Mr Michael Gration of King’s Counsel and Mr Harry Langford of counsel. The mother is represented by Ms Lorna Meyer of King’s Counsel and Ms Maria Orme of counsel. The court granted an application for participation directions made by the mother pursuant to Family Procedure Rules 2010 Part 3A and PD3AA ahead of the hearing and she has sat behind a screen during the hearing and has entered court separately from the father.[2]With respect to the criteria for the making of a return order under the 1980 Hague Convention, the mother accepts the following matters: i) M is under the age of 16 years. ii) The father had and was exercising rights of custody in relation to M at the relevant time, being the time of the mother’s removal of her from Denmark on 10 or 11 January 2026; iii) M was habitually resident in Denmark immediately before the mother’s removal of her from that country on 10 or 11 January 2026; and iv) The mother’s removal of the child from Denmark was therefore wrongful for the purposes of Art 3 of the 1980 Hague Convention.[3]In the foregoing circumstances, the issues the court is required to determine under the 1980 Hague Convention centre on the exception to the making of a return order that is relied on by the mother. Namely: i) Whether there is a grave risk that M’s return to the jurisdiction of Denmark or Sweden would expose her to physical or psychological harm or otherwise place her in an intolerable situation pursuant to Art 13(b) of the 1980 Hague Convention. ii) If there is a grave risk for the purposes of Art 13(b), whether the court should exercise its discretion to order return in any event. iii) If the court makes a return order, whether M should be returned to the jurisdiction of Denmark or the jurisdiction of Sweden.

PRELIMINARY ISSUE

[4]At the outset of the hearing there was an issue as to whether the court should hear oral evidence at the final hearing, that question having been left to the trial judge at the pre-hearing review. On behalf of the mother, Ms Meyer and Ms Orme submitted that the particular facts of this case take it outside the ordinary approach in cases under the 1980 Hague Convention and render oral evidence necessary, notwithstanding the summary nature of the proceedings. Ms Meyer and Ms Orme submitted that it is necessary for the court to hear oral evidence on the following matters: i) The degree of impact of the past controlling and coercive behaviour will have on the mother if there is an order for return to either Denmark or Sweden, in order properly to understand and assess the grave risk of harm to M. ii) The degree of emotional and psychological harm feared by the mother in connection with the insecurity and instability which would flow from a return to either country in connection with(a) her isolation,(b) her inability, through lack of language, to undertake training at a level necessary to acquire meaningful employment and(c) the lack of established proper financial support from the father and the future risks in this regard. iii) The availability of state support or appropriate reasonable housing within the mother’s financial reach, which is not accepted. iv) The efficacy of protective measures, which are not accepted[5]Ms Meyer and Ms Orme submit that without oral evidence being permitted on these issues, the court would be proceeding without sound understanding both of the degree of the risk of harm faced by M and of the efficacy of the resources and steps relied on to protect M from a grave risk of harm.[6]The application to permit oral evidence is opposed by the father. On behalf of the father, Mr Gration and Mr Langford submit that the court should apply the ordinary approach in proceedings under the 1980 Hague Convention and refuse to permit oral evidence.[7]As indicated following submissions on the preliminary issue, I refuse the mother’s application to permit oral evidence. As recognised by Ms Meyer and Ms Orme on behalf of the mother, proceedings under the 1980 Hague Convention are summary in nature. Accordingly, as Ms Meyer and Ms Orme also recognise, any party seeking such a direction for oral evidence will need to demonstrate to the satisfaction of the Court that evidence is necessary to assist the court to resolve the proceedings justly (see Practice Guidance: Case management and Mediation of International Child Abduction Proceedings at [3.14]).[8]It is difficult to think of a case in which oral evidence will be necessary to assist the court to resolve the proceedings justly where the exception relied on is that provided by Art 13(b). The proper approach under Art 13(b) of the 1980 Hague Convention is, where the court cannot confidently discount the possibility that the allegations give rise to an Art 13(b) risk, to take the allegations at their highest and consider whether there are protective measures available which are capable of meeting the level of risk assumed. In this context, it is axiomatic that oral evidence is not necessary to enable the court to determine factual disputes and disputes as to degree of risk, there being no such disputes to determine where the task of the court is to make a reasoned and reasonable assumption as to the level of risk based on the allegations taken at their highest. As Lady Hale and Lord Wilson observed in Re E [2011] UKSC 27, [2011] 2 FLR 758 at [32] (emphasis added):
“First, it is clear that the burden of proof lies with the "person, institution or other body" which opposes the child's return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13b and so neither those allegations nor their rebuttal are usually tested in cross-examination.”
[9]With respect to protective measures, it is also 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). This is not to exclude the possibility of an issue arising regarding the efficacy of protective measures in the requesting State. However, in that context I note that Lowe and others observe in International Movement of Children: Law, Practice and Procedure 2nd Edt. at paragraph 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.”
[10]There is no evidence before the court demonstrating proven inadequacies of protective measures in particular cases involving either Denmark or Sweden. In these circumstances, and by reason of fact that the parties to the proceedings are not themselves responsible for the provision and implementation of the protective measures relied on (for example, the availability of domestic abuse remedies in, or the benefits regime of the requesting state) neither party is well placed to give oral evidence and be cross-examined on the provision, implementation and efficacy of protective measures proposed. Given the nature of protective measures in issue in proceedings under the 1980 Hague Convention, the court must evaluate their efficacy by reference to the information provided to the court, or not provided, by the party proposing the protective measure in question.[11]Having regard to the matters set out above, I am satisfied that it cannot be said in this case that oral evidence from, and cross-examination of the parties with respect to the issue of grave risk or the issue of protective measures is necessary to assist the court to resolve the proceedings justly.[12]Accordingly, having refused the mother’s application to permit oral evidence, in determining the father’s application, I have had the benefit of a court bundle and Position Statements on behalf of the father and the mother, together with focused and comprehensive submissions from leading counsel.

BACKGROUND

[13]The father is a Swedish national. He met the mother, a British and Swedish citizen, in London in 2014. The parties were married in Malta in June 2018. Following their wedding, the parties lived in London for 9 months until March 2019. Thereafter, the parties moved to Stockholm and lived there until December 2023.[14]Whilst ultimately the parties moved to Denmark in 2023, they continued to visit Stockholm. The mother remained registered with the authorities in Sweden. M was born in Sweden on June 2025. She holds Swedish nationality and a Swedish passport. The mother also informs the court that M also holds a British Passport and was registered in November 2025 as a British citizen born abroad.[15]The mother alleges that, during the course of their relationship, the father engaged in coercive and controlling behaviour towards the mother. In her statements, the mother makes the following allegations: i) After the parties’ arrival in Stockholm, the father withdrew from the relationship emotionally and physically and repeatedly told the mother to “figure it out for yourself”. ii) The father used “isolation” to control the mother, refusing to speak to her for days when he was dissatisfied with her. The mother had no support network to rely on. iii) The father exercise significant financial control over the mother. The mother only had access to money through a limited allowance or occasional direct payments into her account. The father had full access to her banking information, including passwords. The father insisted on approving purchases. iv) During the COVID-19 pandemic the mother was unable to attend important family events in the United Kingdom (including the birth of her nephew, weddings, and funerals) and she received no emotional support from the father. v) The mother was required to cease Swedish language classes that she had paid for in order to attend trips arranged by the father’s family and expected to accommodate unplanned visits by them. vi) The mother was compelled to attend family gatherings where she felt unwelcome and isolated, that required long journeys and that placed her in situations where her dietary restrictions and wellbeing were disregarded. She was excluded from conversations despite others being able to speak English. vii) The father engaged in an extra-marital affair during the period the parties were engaging in therapy. viii) In private, the applicant was “cold, dismissive, and at times aggressive”. ix) The mother was expected to visit the father’s family in Sweden after the parties moved to Denmark. x) The paternal grandfather twice struck the mother on the back, forcefully and without justification whilst she was pregnant. xi) The father failed to show empathy and emotional support. xii) The father did not meaningfully engage with the arrival of M and refused to read about child care and preparing for the birth. He also made statements about pursuing custody proceedings. xiii) The applicant registered M’s address as his parent’s home in Sweden, without the mother’s knowledge. xiv) The father interfered with basic childcare decisions, including feeding arrangements agreed with a paediatrician. The father restricted the mother’s movements and prevented her from purchasing essential items such as formula unless she complied with his preferences and “practically” dictated what sort of food item she bought. xv) The father refused to implement safety measures for M in respect of the dog. xvi) The father continued to pressure the mother to have contact with the paternal family during her post-partum period. xvii) On one occasion the father withheld food from the mother across consecutive days. xviii) Approximately 12 weeks after the birth of M, the father told the mother he would no longer support her financially and expected her to live solely on maternity payments, which were insufficient to meet her needs or M’s needs. The father demanded she start looking for work and refused to take paternity leave in order to avoid any responsibility in M’s care. xix) The father ended the lease of the parties’ property in Copenhagen unilaterally, leaving the mother and M homeless.[16]The father denies the allegations made by the mother and on which she relies to establish the exception under Art 13(b) of the 1980 Hague Convention. In summary, he contends that: i) He was encouraging of the mother’s desire to build a career in Sweden, Denmark or England. ii) The father financially assisted the mother and invested heavily in the mother’s proposed business ventures and provided practical and financial support to her. iii) The father from 2025 onwards provided the mother with £400-500 per month to meet her expenses; iv) The mother incurred credit card and buy now pay later loan debts of some £9,000 on the purchase of luxury items including designer clothes and bags. The father settled these debts and reverted to the previous arrangement of the father transferring money to cover the mother’s expenses and for additional items. v) The father took additional work alongside his permanent employment to cover the family expenses and split his disposable income with the mother. vi) In early 2025 the father recognised that the financial strain on him was unsustainable and sought to reduce the time that he was working. He invited the mother to consider searching for part-time employment. The mother took minimal active steps to seek employment. vii) The father never controlled what the mother spent with the money she was provided with by the father. viii) The parties had a different attitude towards disagreements in their relationship and the father would manage these by withdrawing from them.[17]The father denies the other specific allegations made by the mother. He provides a response to the mother’s allegations against his family, provides a response to the mother’s allegations in relation to his behaviour and character. In light of my conclusions as set out below, it is not necessary for me to address those matters in detail.[18]The mother originally booked flights to London for herself and M on 30 December 2025 but changed the ticket to an earlier date. The mother contends that the father was aware of this. Shortly before Christmas, the mother informed the father that she had booked flight tickets for her and M to travel to England but without giving the father a return date. In consequence, and before the mother had left Copenhagen, the father contacted the police in Sweden and Denmark and reported his concerns that the mother would abduct M. As a result, the mother agreed to sign a parental travel consent form whereby she agreed to return M to Copenhagen by 14 January 2026. The mother now asserts that she signed this form under duress. The father denies that the mother was placed under duress in this regard. Pursuant to the travel consent, the mother and M travelled to England on 24 December 2025.[19]Whilst the mother was in London, the father informed the mother by text that he was intending to move to Sweden from 1 January 2026. The mother and child returned to Copenhagen, Denmark on 9 January 2026. On return, the mother asked the father to leave the family home over the weekend of 10 and 11 January 2026, stating that she needed to be alone.[20]M was wrongfully removed from Denmark by the mother on 10 or 11 January 2026. On 11 January, the mother informed the father that she was in London. The mother had packed the clothes she could fit in a suitcase and some necessities for the child. She told the father by text message that she needed time to think and did not provide a return date. The father responded to the mother informing her that he did not consent to her taking the child to England.[21]The father’s solicitors were instructed by ICACU on 12 February 2026. The father’s application for a return order under the 1980 Hague Convention was issued on 26 February 2026. The matter came before McKendrick J on notice to the mother for initial directions on 23 March 2026 who listed the matter to a pre-trial review and final hearing.[22]The father has now moved to Sweden. Whilst M was wrongfully removed from the jurisdiction of Denmark, the father’s primary position is that he seeks the return of M to the jurisdiction of Sweden and invites the court to make a return order under Art 12 of the 1980 Hague Convention in these terms. He relies on the following matters which he contends justify a return order being made to a third state in this case: i) M’s has a connection to Sweden in circumstances where M is a Swedish citizen and resident. ii) M’s has family ties in Sweden in circumstances where his father has relocated to Sweden, and M would have access to her grandparents, aunt and cousin and her extended paternal family in Sweden. iii) Sweden is a familiar jurisdiction to both M and the mother given the family’s history. iv) The mother retains social ties to Sweden via friendships in Sweden made over the course of the 4 years that the parents lived in Sweden. v) Sweden is conducive to M’s welfare in the context of the provision of free healthcare to children in Sweden, the provision of cheap healthcare for the mother, the availability of housing assistance for the mother, the availability of a guaranteed nursery place in Sweden, the availability of family support to assist with childcare and the mother’s entitlement to government support if she returned to education, including additional provision as a single parent. vi) The impact these benefits would have on the mother’s ability to seek employment or return to education whilst also sharing care of M. vii) The availability to M and the mother would of secure housing in Malmö. viii) The availability of SEK 9,200 (approximately £730) per month maintenance, comprising SEK5,000 (£400) per month by way of maintenance and would also benefit from government support SEK4,200 (£330 per month). ix) There is no ‘jurisdictional consequence’ of a return to Sweden, notwithstanding the acceptance of the parties that M was, at the relevant time, habitually resident in Denmark and Sweden and Denmark are party to the 1996 Hague Convention, whilst Sweden also applies the Brussels IIB Regulation. x) If the parties sought to litigate M’s welfare in the jurisdiction of his habitual residence, the parties could litigate in Denmark notwithstanding M’s return to Sweden.[23]As a secondary position, the father submits that M should be returned to the jurisdiction of Denmark, the jurisdiction of M’s habitual residence. As observed by Mr Gration during oral submissions, in this case litigation in Denmark between a parent resident in Sweden and a parent present in Denmark does not present the obstacles that might ordinarily result from parents located in different countries, either geographically or jurisdictionally. There is only some 40km between Malmo and Copenhagen, with free passage across the international border for Swedish citizens. Denmark is the jurisdiction of M’s habitual residence and accordingly, Denmark has jurisdiction by operation of Art 7 of the 1996 Hague Convention. Both Sweden and Denmark are Contracting Parties to the 1996 Hague Convention, and Sweden applies the Brussels IIb Regulation, under both of which instruments the parties can agree jurisdiction. The Swedish courts would have jurisdiction in respect of M by virtue of Art 10 of the 1996 Hague Convention based on the parties’ divorce proceedings instigated in Sweden or by agreement under Art 10 of the Council Regulation. Either parent could make an application for transfer of jurisdiction under the 1996 Hague Convention.[24]The protective measures proposed by the father in the event that court concludes that the mother’s allegations establish a grave risk that return would expose M to physical or psychological harm or otherwise place M in an intolerable situation, are dependent on whether M is returned to the jurisdiction of Sweden or the jurisdiction of Denmark.[25]If the court determines that M should be returned to the jurisdiction of Sweden, the father proffers the following protective measures: i) To cover in full the costs of M’s nursery attendance. The father produces evidence of the likely costs of nursery in Sweden. ii) To move out of his property in Malmo for a period of up to 6 months in order for the mother and M to have accommodation. The father produces evidence of the mother’s likely housing benefit entitlement in Sweden. iii) To pay maintenance of SEK5,000 (approximately £400) per month maintenance for twelve months to supplement government support for the mother of SEK 4,200 (approximately £330) per month, totalling SEK 9,200 (approximately £730) per month for living costs. The father produces evidence to demonstrate he has paid financial support to the mother of £400-500 per month. iv) In the event that the mother does not wish to occupy the father’s property with M, to pay a rental deposit (to be off-set against the final divorce settlement) for a 1 bedroom apartment in Malmo or Lund for the mother and M. The father produces particulars of rental properties in Malmo. v) To pay to the mother a lump sum advance on the parties divorce settlement of up to SEK 150,000 (approximately £12,000) to enable her to cover accommodation and living expenses for herself and M.[26]Should the court determine to make a return order that provides for M to be returned to the jurisdiction of Denmark, the father advances the following protective measures: i) If the mother is regarded as resident in Denmark the father asserts that, as a citizen of Sweden, the mother is eligible for State support amounting (in 2025) to DKK 6,789 and a child allowance of DKK 2,784. ii) If the mother is not entitled to State support in Denmark as a citizen of Sweden, the father will pay to the mother a lump sum advance on the parties’ divorce settlement of up to SEK 150,000 (approximately £12,000) to enable her to cover accommodation and living expenses for herself and M. The father produces evidence of the costs of nursey in Denmark. The father produces evidence of the availability of benefits in Denmark. iii) To pay a rental deposit (to be off-set against the final divorce settlement) for a rental property in Denmark. The father produces evidence of rental properties in Copenhagen.[27]In addition, with respect to both jurisdictions, the father proffers the following undertakings to this court: i) Not to institute or voluntarily support any proceedings, whether criminal or civil, against the mother in relation to M’s wrongful removal from Denmark. ii) Not to attend at the airport, or instruct/encourage any other person to do so, on the day M and the mother arrive in Sweden or Denmark. iii) To pay the mother and M’s direct flights one way from England to Sweden or Denmark for the purpose of affecting the summary return of M. iv) Not to seek to separate M from the mother, pending the first inter partes hearing at the relevant family court in Sweden save for contact between the father and M as agreed or ordered. v) Without prejudice to any acceptance of the allegations made by the mother within these proceedings, not to harass, molest, pester, use or threaten to use violence against the mother whether by himself or by instructing or encouraging any other person to do so.[28]Finally, at no point in her statements of evidence does the mother suggest that she would not return to Sweden or Denmark with M were the court to determine that a return order should be made. However, in her Position Statement, the mother intimated that this would be the position were the court to order that M be returned to the jurisdiction of Sweden. However, during submissions and having taken instructions, Ms Meyer confirmed that the mother would return with M were the court made a return order under Art 12 to Sweden but maintained her position that, if contrary to her primary case, a return order was made, it should be made to require M’s return to Denmark.

RELEVANT LAW

(b) Harm

[29]The proper approach to Art 13(b) and the question of grave risk of exposure to physical or psychological harm or otherwise placing M in an intolerable situation is set out in Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144. The applicable principles may be summarised as follows: 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, in this case the mother. It is for the mother to produce evidence to substantiate the exception on which she relies. 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 M 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 M it 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 M were returned forthwith to Sweden or Denmark. The situation which M will face on return depends crucially on the protective measures which can be put in place to ensure that M will not be called upon to face an intolerable situation when she gets home. Where the assessed risk is serious enough the court will be concerned not only with M's immediate future because the need for protection may persist.[30]Whilst the evaluation of Art 13(b) proceeds on the assumption that the allegations made by the respondent are true, as made clear by Moylan LJ in Re C (Children) (Abduction Article 13(b)) [2018] EWCA Civ 2834, the approach in Re E does not mean that there is no assessment of the credibility or substance of the allegations. In Re A (Children) (Abduction: Article 13(b)) [2021] EWCA Civ 939, [2021] 4 WLR 99 Moylan LJ articulated the position by reference to the Guide to Good Practice under Art 13(b).

(b) ) that:

“[92] This does not mean, as I said in In re C, at para 39, that it was being "suggested that no evaluative assessment of the allegations could or should be undertaken by the court". In support of this conclusion, I quoted what Black LJ (as she then was) had said in In re K (A Child) (Abduction: Child's Objections) [2015] EWCA Civ 720 at [53], about the In re E approach: “I do not accept that a judge is bound to take this approach if the evidence before the court enables him or her confidently to discount the possibility that the allegations give rise to an article 13b risk.”
I would emphasise that Black LJ was referring to discounting the possibility that the allegations would give rise to an article 13(b) risk. She was not otherwise diverging from the approach set out in In re E. It is also plain that she was referring to the end of the spectrum, namely when the court was able confidently to discount the possibility that the allegations gave rise to an article 13(b) risk. This is not to dance on pins but is a distinction of substance derived from the court not being in a position to determine the truth of the allegations relied on as establishing the article 13(b) risk. [93] It was for this reason that, in re C at para 39, I commented that “a judge has to be careful when conducting a paper evaluation” of the evidence. The court has to be careful for the reason given by the Supreme Court, at para 36, namely “the inability of the court to resolve factual disputes”. This creates the “tension” there identified between this inability and “the risks that the child will face if the allegations are in fact true”. This led the Supreme Court to adopt the "pragmatic and sensible solution" set out above. In its concluding paragraphs in In re E, the Supreme Court repeated, at para 52:
"Where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is bound to be on the sufficiency of any protective measures which can be put in place to reduce the risk. The clearer the need for protection, the more effective the measures will have to be." [94] In the Guide to Good Practice, at para 40, it is suggested that the court should first "consider whether the assertions are of such a nature and of sufficient detail and substance, that they could constitute a grave risk" before then determining, if they could, whether the grave risk exception is established by reference to all circumstances of the case. In analysing whether the allegations are of sufficient detail and substance, the judge will have to consider whether, to adopt what Black LJ said in In re K, “the evidence before the court enables him or her confidently to discount the possibility that the allegations give rise to an article 13(b) risk”. In making this determination, and to explain what I meant in In re C, I would endorse what MacDonald J said in Uhd v McKay [2019] EWHC 1239 (Fam), [2019] 2 FLR 1159, para 7, namely that "the assumptions made by the court with respect to the maximum level of risk must be reasoned and reasonable assumptions" (my emphasis). If they are not "reasoned and reasonable", I would suggest that the court can confidently discount the possibility that they give rise to an article 13(b) risk.” "
Where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is bound to be on the sufficiency of any protective measures which can be put in place to reduce the risk. The clearer the need for protection, the more effective the measures will have to be."[31]If the court concludes that it cannot confidently discount the possibility that the allegations give rise to an Art 13(b) risk and the allegations, taken at their highest, are of such a nature and of sufficient detail and substance that if true they could constitute a grave risk, the court moves on to consider whether protective measures are capable of meeting the level of risk assumed. In undertaking that evaluation, the authorities make clear that the court will be guided by the following principles: i) The court must examine in concrete terms the situation that would face M 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 M’s return and measures designed or relied on to protect her 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. vii) With respect to undertakings, what is required is not simply an indication of what undertakings are offered by the father 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.[32]Whilst the court retains a discretion to order the return of M where the exception provided by Art 13(b) is established, were the court to conclude that the harm exception is made out but that no protective measures could be put in place that would meet sufficiently the level of risk assumed to exist, it will ordinarily not be appropriate to exercise that discretion in favour of making a return order notwithstanding those conclusions.[33]In summary, therefore, the stages for determining whether the mother is able to rely in this case on the harm exception in Art 13(b) of the 1980 Hague Convention in accordance with the foregoing principles can be summarised thus: i) Does the evidence enable the court confidently to discount the possibility that the allegations made by the mother give rise to an Art 13(b) risk. ii) If not, taking the allegations at their highest, do the allegations establish a grave risk that return would expose M to physical or psychological harm or otherwise place M in an intolerable situation (risk assessment). iii) If so, are there protective measures available which are capable of meeting the level of risk assumed (risk management).[34]This case also gives rise to the question of return to a third state under the 1980 Hague Convention, i.e. a state other than that from which the child was wrongfully removed. Albeit obiter, the applicable principles are set out by Moylan LJ in B (A Child)(Abduction: Habitual Residence) [2020] EWCA Civ 1187, [2021] 2 FLR 1 as follows:
“54. Mr Hames set out a list of factors which, he submitted, may assist court when deciding whether to make a return order to a third state. These were: whether such a return would be in keeping with the objectives of the 1980 Hague Convention which are designed to serve the best interests of children who have been wrongfully removed or retained; any parental agreement or parental intention about the upbringing of their children, particularly as to the arrangements as to where they should live; meaningful social and family ties and connections of the children with the state of the habitual residence and the third state; the practicality of a return, including the ability of the parents to litigate; any jurisdictional issues arising from such a return, including any surviving jurisdiction of the state of a child's habitual residence; whether a third state return order is consistent, or not inconsistent with a welfare decision of a court with primary jurisdiction; any other factors relevant to forum conveniens; and the availability and efficacy of protective measures available on or prior to a return to a third State, particularly measures relating to jurisdiction… … 111. First, I do not consider that, as a matter of interpretation, the 1980 Convention has this limitation. The Explanatory Report makes clear that an express decision was made to leave scope for a return to a third state. This was, in part, because the Convention continues to apply even after the initial one year limit has expired, provided the child is not settled. 112. Secondly, I consider that to confine Article 12 as suggested would be contrary to the primary objective of the Convention which is to protect children from the harmful effects of their abduction. To exclude the remedy of a return to a third state would not protect children in that situation from the harmful effects of abduction. I do not consider that it is any answer to this to say that an alternative jurisdiction would be available in England and Wales. As an international convention, the 1980 Convention operates autonomously and its interpretation cannot depend on the vagaries of domestic laws. Whilst the 1996 Convention might provide an alternative remedy, many states which are parties to the 1980 Convention are not parties to the 1996 Convention. 113. Thirdly, if Article 12 is not interpreted so as to include this power, absent any of the exceptions being established, the court would be mandated to order, "shall order", the child's return to the state of habitual residence at the date of the wrongful removal or retention. There is no residual discretion under the 1980 Convention. O v O provides an example of when, as Keehan J said, it would have been "absurd", and contrary to the child's welfare, to have ordered that the child be returned to Australia. As Keehan J said, at [64]: "It would be strange indeed if the Convention required steps to be taken which were positively contrary to the interests of the subject children". 114. In my view, Ms Renton's arguments do not address the difficulty which would be created if this was the only order which the court could make when it was required under Article 12 to make an order for "the return of the child forthwith". This would be the effect of those arguments unless, by implication, a new discretion was created outside the express terms of the 1980 Convention which enabled the court to decline to make a return order. 115. Accordingly, either the 1980 Convention needs to be interpreted so as to permit the court to order a child's "return" to a third state or to be interpreted so as to permit the court to decline to order the child's return to the relevant state of habitual residence. In my view, the former sits much better within the scheme of the 1980 Convention and would better promote its objectives. The latter, in contrast, would represent a significant breach of the core principle of the 1980 Convention that a discretion as to whether to make a return order arises only if one of the exceptions is established. 116. During the course of the hearing, I asked Mr Hames more than once how the court would decide whether such an order was appropriate because I was concerned that it might be introducing a step which required a more general welfare assessment. His answer was that such an order should only be made when it was consistent with the objectives of the 1980 Convention. This answer troubled me at the time but, on reflection, it does provide a principled basis for interpreting the Convention as including such a power. As I have said, to interpret the Convention otherwise would be inconsistent with the objective of protecting children from the harmful effects of international child abduction and would lead to the consequential issue to which I have just referred. 117. Clearly, any such power must be used with considerable care so that it does not procure an effective relocation without any concomitant welfare enquiry. It is to be used only when it is, in effect, procuring the child's return. The most obvious example when it might be used is when the child is being returned to his or her primary carer. Another example might be when, as in this case on the judge's determination of habitual residence, the family has moved to new state but has not yet become habitually resident there. 118. As to the relevant factors, I would endorse those factors referred to by Mr Hames in his submissions (at paragraph 54 above), which I do not propose to repeat.”

DISCUSSION

[35]Having considered the evidence in these proceedings carefully, I am satisfied that the father’s application for a return order must be granted. My reasons for so deciding are as follows.[36]In evaluating whether the exception under Art 13(b) of the 1980 Hague Convention is made out, this court is required to undertake an exercise of risk assessment and risk management, based on the evidence available to it evaluated summarily. The matters relied on by the mother to demonstrate that, taken at their highest, establish a grave risk of physical or psychological harm or otherwise intolerable situation for M pursuant to Art 13(b) of the 1980 Hague Convention divide broadly into five categories: i) The father isolated the mother during their relationship by withdrawing from her emotionally, by ceasing interaction with her on occasion and by failing to provide her with support during Covid-19. ii) The father exercised coercive and controlling behaviour over the mother by limiting her finances, monitoring her expenditure, demanding to approve purchases and expecting her to seek employment only 12 weeks after the birth of M. iii) The father forced the mother to spend time with and interact with his family at the expense of her other activities, including learning Swedish, even after she had been struck twice on the back by the paternal grandfather. iv) The father failed to engage with the birth and parenting of M, interfered with basic child care decisions, refused safety measures with respect to the dog and withheld food from the mother. v) The father left the mother and M homeless by ending the lease of the parties’ property in Copenhagen.[37]As I have reiterated above, whilst the evaluation of Art 13(b) proceeds on the assumption that the allegations made by the respondent are true, the approach in Re E does not mean that there is no assessment of the credibility or substance of the allegations.[38]There are some curious features in the mother’s evidence. In particular, there is a sense in respect of some of the allegations made by the mother that they have been curated to legislate for the fact that other’s may give a different account. Thus, the mother contends that, with respect to her allegations of financial coercion and control, the father was paying her regular sums and it would have looked from the outside that the father was supporting her. In respect of her allegations of lack of support, the mother again states that from the outside it would have looked like the father was supportive. Certain of the serious allegations are not particularised or dated, in particular the allegation that the father denied the mother food. However, and as realistically recognised by the father, the evidence before the court does not enable the court confidently to discount the possibility that the allegations made by the mother give rise to an Art 13(b) risk.[39]The court must accordingly consider whether, taking them at their highest, the allegations establish a grave risk that return would expose M to physical or psychological harm or otherwise place M in an intolerable situation (risk assessment).[40]A further characteristic of the mother’s evidence is that it concentrates heavily on the impact on the mother of a return order being made, with far less attention paid to the impact on M. Thus it was submitted on behalf of the mother that the mother would find living in Sweden intolerable without a support network, language skills and friction with the paternal family; that the mother will have to face an extensive period of legal proceedings in either Sweden or Denmark to finalise arrangements for both financial support for M and herself, capital division and the arrangements for M’s future care and residence; and that the motherwould have no security or stability in the light of her evidence of past financial control and threats made by the father.[41]Other assertions by the mother lack an apparent evidential base. Whilst the mother contends that M “will experience additional isolation due to her skin colour and ethnic origin” if a return order is made, there is no evidence before the court to support that conclusion, beyond the mother’s assertion. Likewise, during the course of the oral and written submissions on behalf of the mother it was suggested that one of the sources of grave risk of harm to M was the impact on the mother of being compelled to return with M in the context of the coercive and controlling behaviour she alleges against the father. It was submitted in this context that “her anxiety and fear arising from the same would clearly and without doubt have grave consequences for M.” This comes very close to seeking to place this case in the category of applications where it is asserted that the anxieties of a respondent mother about a return with the child, which are not based upon objective risk to her but are of such intensity as to be likely to destabilise her parenting of the child, will make the child’s situation intolerable. There is, however, no psychological or psychiatric expert evidence in this case to support such an assertion, or an application under Part 25 for permission to adduce such expert evidence to demonstrate this.[42]All that said, in my judgment, the evaluative assessment of the evidence in this case illuminates matters which, taken at their highest, do lead to the conclusion that the return of M to the jurisdiction of the Sweden or Denmark would expose her to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation.[43]As made clear in the HCCH Guide to Good Practice on Art 13(b), the specific focus of the grave risk analysis in cases of this nature is the effect of domestic abuse on the children upon their return to the requesting state, and whether such effect meets the high threshold of the Art 13(b) exception. I am not satisfied that the father behaving in an emotionally cold and unsupportive manner towards the mother, expecting the mother to spend time with his family to the exclusion of her own activities or failing to engage sufficiently with the parenting tasks for M can, even taken at their highest, be said to ground a grave risk to M of physical or psychological harm or otherwise place her in an intolerable situation for the purposes of Art 13(b) of the 1980 Hague Convention. Likewise, the disruption inherent in a return order being made, resulting in returning M being returned to a temporary situation pending determination of the welfare issues between the parents does not, of itself, satisfy the terms of Art 13(b).[44]However, taken at their highest, the allegations that the father coerced and controlled the mother by using financial pressure, monitoring and control of expenditure, and by seeking to compel the mother to find employment immediately post partum do, in my judgment, create a grave risk of physical or psychological harm for M, or otherwise place her in an intolerable situation. This is particularly so when taken with the allegations that the father denied the mother food, restricted the mother’s movements and prevented her from purchasing essential items for M unless she complied with his preferences and left the mother and M homeless by ending the lease of the parties’ property in Copenhagen.[45]Controlling behaviour is defined by FPR 2010 PD12J as an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour. It is behaviour designed to render and individual subordinate and to corrode their sense of personal autonomy (see F v M [2021] EWFC 4). The alleged coercive and controlling behaviour extends in this case, at its highest, to the control by the father of the mother’s movement, choices and financial autonomy.[46]The effect of domestic abuse and coercive and controlling behaviour on children is well established (see TB v TJ (Abduction: Grave Risk of Harm) [2001] 2 FLR 515). Whilst I acknowledge that M is at present only 1 year old, I proceed on the basis that behaviour designed to render and individual subordinate and to corrode their sense of personal autonomy creates a grave risk of harm to children who experience a parent being subjected to such behaviour. It is further important to recognise that alleged coercive and controlling behaviour grounds a risk of future harm, the Court of Appeal noting in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) at [52] that:
“[52] In like manner, the approach of regarding coercive or controlling incidents that occurred between the adults when they were together in a close relationship as being ‘in the past’, and therefore of little or no relevance in terms of establishing a risk of future harm, should, we believe, also be considered to be ‘old fashioned’ and no longer acceptable. The fact that there may in the future be no longer any risk of assault, because an injunction has been granted, or that the opportunity for inter-marital or inter-partnership rape may no longer arise, does not mean that a pattern of coercive or controlling behaviour of that nature, adopted by one partner towards another, where this is proved, will not manifest itself in some other, albeit more subtle, manner so as to cause further harm or otherwise suborn the independence of the victim in the future and impact upon the welfare of the children of the family.”
[47]Having assessed the risk to M of psychological harm in this case to be grave for the purposes of Art 13(b), taking the allegations of coercive and controlling behaviour at their highest, I turn to the question of whether the level of risk I have identified can be managed such as to permit a return order to be made safely in this case. This requires a focus on the concrete position of M should be returned pursuant to a return order. In this case, maintaining the appropriate focus on the concrete position of M should be returned pursuant to a return order requires the court first to determine the question of which jurisdiction it is appropriate to return M were the court to make a return order. I am satisfied that the appropriate jurisdiction is Denmark.[48]The father does not, in the final analysis, press forcefully the submission that M should be returned to Sweden. This is a sensible position. M was habitually resident in the jurisdiction of Denmark at the date she was wrongfully removed and she remains so by operation of Art 7 of the 1996 Hague Convention. A cardinal principle underpinning the 1980 Hague Convention is that welfare decisions in respect of children should be made by the jurisdiction with which they have the closest connection, the connective factor in this context being habitual residence. Whilst, given M’s age and the limited amount of time M spent in either of the jurisdictions in question, that principle has perhaps less practical force in this case, it is in my judgment the principled starting point. That is all the more so in this case, where the parties positions as to the final welfare outcome for M mean that a return to Sweden, where the father now resides, risks procuring an effective relocation without any concomitant welfare enquiry. Both parents are able to litigate in Denmark and, as I have set out above, there is no jurisdictional justification in this case for preferring a return to Sweden over a return to Denmark, which in any event retains jurisdiction by virtue of M’s habitual residence. In the circumstances, if a return order is made, that return should be to the jurisdiction of Denmark.[49]The concrete position of M were she to be returned to the jurisdiction of Denmark would be that she would be residing with her mother pending the Danish court (or the Swedish court if the parents reach agreement as to jurisdiction or the Danish court accedes to any application to transfer jurisdiction) determining the final welfare outcome in this case. The grave risk identified by the court when considering the allegations at their highest, and that requires managing in this case to enable a safe return, is the risk that the father will use financial pressure to coerce and control the mother. It is in this context that the court must consider whether are there are protective measures available which are capable of meeting the level of risk assumed[50]I am satisfied that, provided it is paid prior to the implementation of a return order and that the mother is free to allocate housing costs and maintenance from that sum at her sole election, the payment of a lump sum advance on the parties’ divorce settlement of up to SEK 150,000 (approximately £12,000) will address the risk of the father being able to exert pressure on the mother through financial coercion and control. If it transpires that, in addition, the mother is eligible for State support amounting (in 2025) to DKK 6,789 and a child allowance of DKK 2,784 this will further protect against the grave risk identified by the court in this case. However, for the protective measures proposed, the advanced sum needs to be provided in any event. Having regard to the property particulars provided by the father, a lump sum advance on the parties divorce settlement would permit the mother to fund a property for a period that covers at least the commencement of welfare proceedings in that jurisdiction, and likely longer. This achieves, in the interim, independent security for M and the mother pending the determination of the Danish courts.[51]By ensuring that the return order is only implemented once the £12,000 has been paid and by ensuring that there are no conditions on the expenditure of that money on rental costs and maintenance, I am satisfied that these measures are sufficiently robust to manage the risk assumed by the court in this case. Additional reassurance will be afforded in circumstances where I am satisfied that this court can, the contrary not having been proved, repose confidence in the administrative, judicial and social service authorities of Denmark, including the police and the courts, to take necessary steps to protect M were the father to engage in behaviour the protective measures approved by this court are designed to prevent. I note in this regard that the mother has in the past demonstrated herself able to contact the authorities for assistance with her situation, albeit on that occasion it was the authorities in Sweden rather than Denmark, and that those authorities were responsive. The court is further reassured by the undertakings that the father is willing to provide to the court, namely: i) Not to institute or voluntarily support any proceedings, whether criminal or civil, against the mother in relation to M’s wrongful removal from Denmark. ii) Not to attend at the airport, or instruct/encourage any other person to do so, on the day M and the mother arrive in Denmark. iii) To pay the mother and M’s direct flights one way from England to Sweden for the purpose of affecting the summary return of M. iv) Not to seek to separate M from the mother, pending the first inter partes hearing at the relevant Danish family court save for contact between the father and M as agreed or ordered. v) Without prejudice to any acceptance of the allegations made by the mother within these proceedings, not to harass, molest, pester, use or threaten to use violence against the mother whether by himself or by instructing or encouraging any other person to do so.

CONCLUSION

[52]In conclusion, I am not satisfied that the mother can bring herself within the exception provided by Art 13(b) of the 1980 Hague Convention. In such circumstances, this court is required to make a summary return order in respect of M. I am satisfied that the return should be to the country of M’s habitual residence, namely Denmark.[53]In the circumstances, I make a return order under Art 12 that M shall be returned to the jurisdiction of Denmark forthwith, subject to the payment of the £12,000 advance to ensure that the mother has funds for re-housing and maintenance for M and herself in Denmark pending the determination of the final welfare outcome in this case.

Cited in 1 later judgment