G (A Child) (Abduction: Article 13(b): Mental Health), Re [2026] EWHC 2201 (Fam)

[2026] EWHC 2201 (Fam)Case No FD26P00080
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/08/2026
Before
MR S KARIM KC(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
NVApplicantAMRespondentRe G (A Child) (Abduction: Article 13(b): Mental Health)
Harry Langford (17 -18 June 2026) and Olivia Gaunt (25 August 2026)(instructed by Goodman Ray) for NVJasmine Knapman (instructed by Advocate) for AMHearing Hearing dates: 17, 18 June 2026 and 25 August 2026
Approved JudgmentThis judgment was handed down remotely at 14:00 on 25 August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR S KARIM KCThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Mr S Karim KC :

[1]By way of an application dated 2 February 2026, NV (“father”) seeks a summary return order under the 1980 Hague Convention (“Convention”) in relation to G, who was born in Country A and is now 6 years old. This is opposed by AM (“mother”) who seeks to rely on Article 13(b) of the Convention.[2]The mother accepts, albeit latterly as articulated before Arbuthnot J on 1 May 2026 that:(1) G was habitually resident in Country A,(2) father was exercising custody rights in relation to G prior to his removal on 6 January 2026, and(3) father did not consent when she removed G from Country A to this jurisdiction.[3]The germane issue before me is whether there is a grave risk that G’s return to Country A would expose him to physical or psychological harm or otherwise place him in an intolerable situation pursuant to Article 13(b) of the Convention. The second issue, and subject in part to the first, is that if there is a grave risk, whether I should exercise its discretion to order return.

(b) ) [2026] EWHC 1763 (Fam) at [4] when he said that:

“….it is important for the court to keep in mind that…… (ii) the court cannot turn back the clock – for good or ill the children's circumstances have changed as a result of their wrongful removal or retention; and (iii) when considering the Art 13(b) defence, the court is engaged in an assessment of risk not of welfare.”

Background

[4]Background The mother is a national of Country A and moved to Country B in 2001. The father and mother met in Country B in circa 2010. The father moved to Country C in 2015, and it is said that they resumed a relationship in 2019. The mother returned to Country A in 2020, and G is born in 2020, and shortly after this father moved to Country A from Country C. Father returned to Country C in circa January 2023, and their relationship ceased in late 2024. Mother wrongfully removed G from Country A and now resides in Country B. Father continues to reside in Country C. He asserts that despite not residing in Country A, he had constant contact with G (including during trips) and was previously involved in significant decision making about G. Mother has settled immigration status in Country B, as does G (she applied for the same unbeknown to father, which was granted by the relevant immigration authority). Mother has admitted G into a school in Country B.[5]In Country A, G resided with his mother at a property owned by her. G’s maternal grandparents also reside in Country A; they are in their 70s. G attended school in Country A. G has lived in Country A for most of his life. It is accepted that the mother is the main care provider for G.[6]At a hearing before Mr S Colton KC (sitting as a Deputy High Court Judge) on 6 February 2026, mother opposed the application for summary return and stated that father had in fact consented to a relocation to Country B. At a further hearing on 1 May 2026 before Arbuthnot J, mother stated that she would not return to Country A and withdrew her defences in relation to habitual residence, custody and consent. In light of these concessions, the issues for determination were summarised in the order as being, “whether a return to [Country A] would place G at grave risk of harm or in an otherwise intolerable position (Art. 13(b)) on the basis that(i) G would be separated from his mother,(ii) a return for the mother would cause a deterioration in the mother’s mental and physical health; and(iii) the mother would not be a position to provide practically for G in [Country A]”. Mother was directed to provide further evidence in relation to this, which she duly did.[7]The matter subsequently came before me on 21 May 2026 for a final hearing. At this hearing, Ms Knapman during oral submissions, and following a specific interaction as to the extent of what medical evidence mother was relying upon and after a short adjournment, sought permission to jointly instruct a psychologist/psychiatrist. Ms Knapman said that mother wished to rely on medical evidence in relation to the effect of her mental health if she were to return to Country A. Mr Langford objected to such an application. Given the generality of what was being asserted and sought, I granted permission for the mother to file further witness evidence and further medical evidence only (in turn refusing the Part 25 application) in relation to(1) the change in her mental and physical health since moving to Country B, and(2) the effect that returning to Country A would have on her mental and physical health and her ability to parent the child.

Parties’ Positions

[8]Parties’ Positions Father asserts that he:a. had limited notice of G moving to Country B and did not consentb. made an application to the local Court in Country A prohibiting the removal; it is said that the Court in Country A accepted jurisdiction to consider welfare issues relating to Gc. had cared for G during his annual trips to Country A and paid mother maintenanced. in the absence of mother returning, he would relocate to Country A, then would apply to the Court in Country A to seek permission to move to Country C with G; if that application were unsuccessful, he would remain living in Country Ae. if mother remains in Country B, and G is in father’s care in Country A, he will ensure that there is frequent contact between them; mother can reside at her own apartment when she visits and travel between Country B and Country A is relatively easyf. is concerned about the negative impact on G’s speechg. wishes for G to be enrolled in primary school in September 2026 in Country A.[9]In his witness statement dated 18 May 2026, father accepts that mother has suffered from migraines, and that she had been prescribed antidepressants and relies on the notes of ‘couple therapeutic work’ from September 2021 and January 2022, including references to mother having traits consistent with a borderline personality disorder. Father states that:
“11. I found that many of the characteristics I had observed in [mother] over the years, emotional instability, fear of abandonment, and impulsivity (such as an unplanned move to [Country B] for a child) were seemingly consistent with BPD presentations. I suggested to [mother] that she consult a specialist in personality disorders. She reacted with considerable upset, rejected any suggestion that BPD might be relevant, and declined to pursue this. A formal BPD assessment requires a psychiatrist or clinical psychologist experienced in personality disorders. 12. I accept that [mother] has described herself as being depressed, feeling lonely, feeling isolated. I don’t accept that is a full picture of her life (or G’ life) in [Country A]. On [mother]’s own evidence it is where G’ grandparents live, who they are both close to; I know that [mother] has numerous friends and extended relatives in [Country A] and throughout [Country A]. As [mother]’s sets out, she is only now making friends in [Country B] – with parents from G’ school, as school he has only been attending since January 2026.”
[10]Mother’s evidence has changed throughout these proceedings.[11]The genesis of her evidence was her response to questions dated 12 February 2026 when she said inter alia that G was not habitually resident in Country A, the father was not exercising any rights of custody, and the move was discussed with father prior. In relation to Article 13(b) it was said that a return to Country A is “impractical” as she cannot relocate. In a witness statement dated 28 February 2026, she then states that father did not consent to a move to Country B “at the last minute”, but he did not provide any practical alternative arrangement as to where G would live and who would care for him “if I were to remain in [Country B]”. In this same document she sought(1) consideration of G’s welfare and that it is best for him to remain in Country B cared for by her with structured contact with father, and that(2) if a return were ordered that the father should sets out a “clear” and “workable” care plan for G. In a witness statement dated 28 March 2026 it is said that “… My position is not that [G] can only live in [Country B]. My position is that Country A is not workable for me as the primary carer in the current circumstances. If a suitable role arose elsewhere that enabled a stable life and schooling for [G], I would consider it. The point is that I need a location where I can realistically secure adequate income and stability”.[12]The mother expands on her Article 13(b) defence in the witness statement dated 11 May 2026 in which she refers to suffering from migraines, depression, anxiety, stress and isolation of her life in Country A supported by medical correspondence amongst others dated 3 October 2022, and a letter from a counselling service. Those migraines, it is said, “disappeared” as she soon as “got on the plane to Country B on 6 January 2026”. She further states that in Country B, “I feel more emotionally stable, more hopeful, and more able to function”. The second reason why it is said she would not return to Country A is because of “dire poverty” based on the maintenance provided and inability to develop or find work. The latter part of this statement reads (preceding protective measures in the event that a return order is granted) that, “..I wish to make very clear that, although I include the revised protective measures above to address the situation that would actually face [G] upon his return to [Country A], there are no protective measures which could possibly address the harm that would be caused to [G] by being removed from his primary carer.”.[13]In respect of other relevant evidence, mother states that:(1) the maternal grandparents are elderly and live 3.5 hours away; they are unable to provide day to day practical assistance; it is said that both have cancer,(2) she is isolated in Country A and unable to secure suitable employment and remaining in Country B is the only realistic way in which she can support G financially, and(3) she has been G’s primary carer throughout his life; and any separation would have a severe impact on G.[14]It is a curious feature of this case that at this stage neither parent primarily wishes for G to remain in Country A, albeit the father states that he will remain there if his application to move to Country C with G is unsuccessful.

Medical evidence

[15]Medical evidence For the reasons outlined above, I gave mother permission to file a further witness statement and medical evidence to address the change of her mental and physical health since moving to Country B, and the effect on her of moving to Country A. In her final witness statement, mother exhibits a medical report dated 3 June 2026 prepared by Dr T D Brow (Clinical Psychiatrist) and in reliance on the same, she asserts that a return to Country A would place both her wellbeing and G’s stability “at serious risk”.[16]Mr Langford highlights that the production of this report circumvents the refusal of the Part 25 application. He did not, however, suggest that I should not consider the report, but that limited weight should be placed on it for the reasons outlined below. Neither party sought to renew the Part 25 application, put questions to Dr Brow or seek to call him to give oral evidence.[17]Under the heading of ‘medical history’ the author states, “… Unfortunately I was not given sight of [mother’s] GP records, although she does have a GP based in [Country B]; the entries below are based on [mother’s] recall of her medical history, other than the records from Country A regarding treatment for migraine and anxiety and depressive disorder”. The author did consider letters from clinicians in Country A together with WhatsApp and text messages, emails, various other documents and collateral interviews with others. The examination was via a remote assessment on 30 May 2026 which lasted 3.5 hours. The report outlines that mother experiences symptoms of acute anxiety, recurrent headaches under stress and panic attacks, in Country A she had stopped all long-term medication; she did take medication in relation to the migraines for 2 to 3 months and she had experienced previous suicidal ideation.[18]The author concludes inter alia that:a. the mother presents with severe anxiety and moderate depression with occasional panic attacks and suffers from ongoing headaches with migraines, which are mildly disabling and moderately disabling in Country Ab. whilst she feels better in Country B, her current state of anxiety is high, precipitated by ongoing litigation and the “fear” of a return to Country Ac. she has a diagnosis of Migraine with Mixed depressive and anxiety disorderd. her mental and physical health has improved since moving to Country Be. she would, “suffer a rapid deterioration in her physical and mental health which could escalate to suicidality should she return to [Country A]. The same would certainly apply should she be separated from [G]”

Protective measures

[19]Father offered that(1) he will not instigate criminal or civil proceedings against mother,(2) he will collect G to travel to Country A with him,(3) he would fund G’s travel costs to return home,(4) he will continue with the proceedings in Country A for relocation,(5) he will promote contact with mother, drawn up a schedule of contact and support indirect contact,(6) share G’s address,(7) share the details of registration at school, and(8) not remove G from the jurisdiction from Country A permanently without agreement of the court’s permission. If mother returns to Country A, the father is prepared to (1) not instigate criminal or civil proceedings against mother, (2) fund the cost of the flights for mother and G, (3) continue to pay child maintenance, (3) pay for G’s school fees, (4) withdraw the application made in Country A, and (5) set up a direct and indirect contact plan.

Legal framework

[20]Legal framework Mr Langford and Ms Knapman have provided an agreed and comprehensive note of the applicable law.[21]The policy considerations underpinning the 1980 Hague Convention are identifiable from the Preamble and Article 1 of the Convention:
“…the interests of children are of paramount importance in matters relating to their custody”; and “The objects of the present Convention are - a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” and in any Contracting State; and Contracting State are effectively respected in the other Contracting States.”

in any Contracting State; and

[22]The Supreme Court explained at [14] in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 that,“the fact that the best interests of the child are not expressly made a primary consideration in Hague Convention proceedings, does not mean that they are not at the forefront of the whole exercise”. The Convention assumes that the best interests of a child will be served by a prompt return to their country of habitual residence. However, that assumption may be invalid where Article 13(b) applies ([16]).[23]Article 3 defines wrongful removal/retention as follows: “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”

and

[24]As per §15 of the Guide to Good Practice under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part IV, Article 13(1)(b):
“The third underlying concept is that, as a rule, the courts of the child’s State of habitual residence are best placed to determine the merits of a custody dispute (which typically involves a comprehensive “best interests” assessment) as, inter alia, they generally will have fuller and easier access to the information and evidence relevant to the making of such determinations. Therefore, the return of the wrongfully removed or retained child to his or her State of habitual residence not only restores the status quo ante, but it allows for the resolution of any issues related to the custody of, or access to, the child, including the possible relocation of the child to another State, by the court that is best placed to assess effectively the child’s best interests. This third underlying concept is founded on international comity, which requires that the Contracting Parties “[…] be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them – those of the child's habitual residence – are in principle best placed to decide upon questions of custody and access.”
[25]Article 13 provides that, “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - … b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”[26]The seminal authorities on Article 13(b) are the two decisions of the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 and Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10. In Re E (Children) (supra), Lady Hale and Lord Wilson delivering the majority judgment made clear at [32] that the burden of proof lies with the person opposing the child’s return and that the standard of proof is the ordinary balance of probabilities. The risk to the child must be ‘grave’ and although ‘grave’ qualifies the risk rather than the harm, there is in ordinary language a link between the two ([33]). At [34], Lady Hale and Lord Wilson said: ‘“As was said in In re D[2007] 1 AC 619, para 52, ‘“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”’… Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate…”[27]In Re S (A Child) (supra), the Supreme Court confirmed what it had said in Re E (Children) (supra): that the terms of Article 13(b) are plain, need neither elaboration nor gloss and by themselves demonstrate the restricted availability of the defence. The jurisprudence set out by the Court of Appeal in Re A (Children) (Abduction: Article 13(b)) [2021] EWCA Civ 939 is summarised below, insofar as it is relevant:a. The terms of Article 13(b) are by their nature restricted in scope. Article 13(b) has a high threshold, as demonstrated by the use of the words ‘grave’ and ‘intolerable’ ([84]);b. The focus is on the child, and the issue is the risk to the child in the event of their return. In Re S (supra) at [34], Lord Wilson emphasised that where a return will cause the parent such anxiety that the effect on their mental health will create an intolerable situation for the child, then a return should not be ordered – it matters not whether the anxieties have a reasonable or an unreasonable foundation. Nonetheless the extent to which there is objectively a good cause for those anxieties will be relevant to the court’s assessment of their mental state on return ([85]);c. In (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 Baroness Hale emphasised the focus on the child’s position at [52]: “Intolerable” means a situation which this particular child in these particular circumstances should not be expected to tolerate. The English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant and relying on the courts of the requesting state. In many cases this will be sufficient, but it will not invariably be so, “No one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm." ([86]);d. The effect of the separation of a child from the removing parent can establish the required grave risk. Enforcing a child’s separation from their primary carer for an indeterminate period of time may constitute a situation which they should not be expected to tolerate, notwithstanding this situation being caused by the removing parent’s actions. The focus must be on the child’s situation and not on the source of the risk ([88] - Re W and another (Children) [2019] Fam 125 at [57]); ande. As a rule, the removing parent should not be able to create a situation through the wrongful removal or retention of the child that is potentially harmful to the child and then rely on it to establish the existence of a grave risk to the child ([89]). However, this principle should not lead to the effective exclusion of the Article 13(b) defence itself, which is directed to the question of risk of harm to the child and not the wrongful conduct of the abducting parent. Such wrongful conduct is a ‘given’ ([90]).[28]The Guide to Good Practice under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part IV, Article 13(1)(b) (“GTGP”) states where relevant that:a. Article 13(b) does not require that the child be the direct or primary victim of harm if there is sufficient evidence that, because of a risk of harm directed to a taking parent, there is a grave risk to the child (para 33);b. The term "grave" qualifies the risk and not the harm to the child. It indicates that the risk must be real and reach such a level of seriousness to be characterised as "grave". As for the level of harm, it must amount to an “intolerable situation”, that is, a situation that an individual child should not be expected to tolerate. The relative level of risk necessary to constitute a grave risk may vary, however, depending on the nature and seriousness of the potential harm to the child” (para 34);c. The Article 13(b) defence focuses upon the circumstances of the child upon return. Therefore, it should not be confined to an analysis of the circumstances that existed prior to or at the time of the removal or retention, but instead requires consideration of the circumstances as they would be if the child were to be returned forthwith, including consideration of the availability of adequate and effective protective measures in the state of habitual residence (paras 35 to 36);d. All assertions of grave risk are to be evaluated on the same standard or threshold and step-by-step analysis: i. As a first step, the court should consider whether the assertions are of such a nature and of sufficient detail and substance that they could constitute a grave risk; ii. If it proceeds to the second step, the court determines whether it is satisfied that the grave risk exception to the child’s return has been established by examining and evaluating the evidence presented by the person opposing the child’s return / information gathered, and by taking into account the evidence / information pertaining to protective measures available in the State of habitual residence; and iii. If the court finds that the Article 13(b) defence is not established, it orders the return of the child. If it is established, the court is not bound to order the return of the child, but it may do so in the exercise of its discretion nonetheless (paras 38 to 42).[29]Where the taking parent would be unable or unwilling to return to the State of habitual residence of the child, the GTGP provides the following guidance:
“60. Where assertions of grave risk based on economic or developmental disadvantages upon the return of the child are made, the analysis should focus on whether the basic needs of the child can be met in the State of habitual residence. The court is not to embark on a comparison between the living conditions that each parent (or each State) may offer. This may be relevant in a subsequent custody case but has no relevance to an Article 13(1)(b) analysis. More modest living conditions and / or more limited developmental support in the State of habitual residence are therefore not sufficient to establish the grave risk exception. If the taking parent claims to be unable to return with the child to the State of habitual residence because of their difficult or untenable economic situation, e.g., because his / her living standard would be lower, he / she is unable to find employment in that State, or is otherwise in dire circumstances, this will usually not be sufficient to issue a non-return order. In particular, dependency on State benefits or other institutional support does not in itself amount to a grave risk. Only very exceptional circumstances might lead to a grave risk to the child. Where circumstances have been established that would amount to a grave risk, courts may consider whether protective measures can protect the child from such risk, such as the provision of some urgent financial assistance for the short-term period until the court of competent jurisdiction in the State of habitual residence can make any necessary orders. 63. Assertions of grave risk of psychological harm or of being placed in an intolerable situation resulting from a separation of the child from the taking parent when this parent is unable or unwilling to return are frequently raised in return proceedings in a wide range of circumstances. Judicial decisions from numerous Contracting Parties demonstrate, however, that the courts have only rarely upheld the Article 13(1)(b) exception in cases where the taking parent cannot or will not return with the child to the child’s State of habitual Residence. 64. The primary focus of the grave risk analysis in these instances is the effect on the child of a possible separation in the event of an order for return or of being left without care, and whether the effect meets the high threshold of the grave risk exception, taking into account the availability of protective measures to address the grave risk. The circumstances or reasons for the taking parent’s inability to return to the State of habitual residence of the child are distinct from, although they may form part of, the assessment of the effect on the child of a possible separation. 65. Where the separation from the taking parent would meet the high threshold of grave risk, the circumstances or reasons for the taking parent’s inability to return to the State of habitual residence of the child may in particular be relevant in determining what protective measures are available to lift the obstacle to the taking parent’s return and address the grave risk. Examples are provided below (paras 67-72) of some common obstacles raised by taking parents and the types of measures that courts may wish to consider under various scenarios. Alternatively, where the obstacles to the return of the taking parent cannot be lifted, other considerations in assessing possible protective measures may include the option for the left-behind parent or other person to care for the child upon his or her return to the child’s State of habitual residence until a court in that State is able to make a custody determination. 66. Where to address a grave risk it is important that pending custody proceedings in the State of habitual residence are listed promptly, the court ordering the return could require, as a measure of protection for the child, that custody proceedings should take place as soon as possible in the State of habitual residence of the child upon return. Where appropriate under the relevant laws and procedures, the parties could be informed about accelerated procedures which might exist in the child’s State of habitual residence. In addition, depending on the circumstances, and where this is possible in both States concerned, the court ordering the return could also help facilitate the prompt listing of proceedings through direct judicial communications.”
[30]The approach to be taken where the removing parent informs the court that they will not accompany the child if a return order is made was considered by the Court of Appeal in R (Child Abduction: Parent's Refusal to Accompany) [2024] EWCA Civ 1296. Peter Jackson LJ summarised at [36]: “…Where that parent asserts that they will not accompany the child to return, the court will scrutinise the assertion closely, because it is an unusual one for a main carer of a young child to make. The court will therefore make a reasoned assessment of the degree of likelihood of the parent not returning. Relevant considerations will no doubt include the overall circumstances, the family history, any professional advice about the parent's health, the reasons given for not returning, the possibility that the refusal is tactical, and the chance of the position changing after an order is made. The court will then factor its conclusion on this issue into its overall assessment of the refusing parent's claim to have satisfied Article 13(b). By this means, it will seek to ensure that the operation of the Convention is neither neutralised by tactical manoeuvring nor insufficiently responsive to genuine vulnerability”.[31]And at [38]:
“ in assessing the likelihood of a parent not returning, the court is not addressing a binary issue of fact (such as consent: see Re W at [58]). Instead, it is asking whether, factoring its assessment on this issue into the evidence as a whole, that parent has established an Article 13(b) grave risk to the child if a return order is made. In that context, the court is assessing likelihood on a summary basis, not finding facts.”
[32]In Re C (Children)(Abduction: Article 13(b)) [2018] EWCA Civ 2834 at [43], Moylan LJ highlighted ‘the need for caution when relying on undertakings’, and explained that in determining what weight to place upon undertakings given to the English court, 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 consequences, including remedies, in the absence of compliance”.[33]In Re L (Article 13: Protective Measures) (No. 2) [2023] EWHC 140 (Fam), Mr Justice Cobb (as he then was) noted at [12] that the court is bound to look at whether any proposed protective measures are:a. Forward looking to address the risk(s) which would exist if/when the child returns;b. Effective to address the risk(s); exceptionally, this may involve undertakings or protective measures being in place and remaining in force for a period beyond the first hearing in the courts of the child’s country of habitual residence;c. Proportionate;d. Appropriate and readily available;e. Practical; andf. Focused on the child, and on the effect of the proposed arrangements on the individual child; the situation of the child has to be looked at in “concrete terms”.

Analysis and discussion

[34]The father submits a summary return order should be made forthwith. Mr Langford urges me to place little weight on the report of Dr Brow for various reasons including:(1) that it is not a report that has been prepared for the sole purpose of litigation,(2) it was not a joint instruction,(3) selective material and information has been provided and it is based on self-reporting, and(4) there was limited or no access to relevant medical records in Country A or Country B. He asserts that there is neither a grave risk of harm nor risk of intolerability for G not least because, it is said that the very arrangements now put forward by father had been suggested by mother prior to G’s unilateral relocation. It is also said that a return would be for a limited period whilst the Court in Country A is able to decide G’s long-term best interests, and as such the separation from mother would not be for an “indeterminate period of time” as per Peter Jackson LJ in Re W & Another (Children) [2019] Fam 125 at [57].[35]Ms Knapman principally states, on behalf of mother, that the updating evidence(1) provides a strong evidential basis for her assertion that her mental and physical health has improved since being in Country B, and(2) explains, why that the mother will not return to Country A in turn relying on the report of Dr Brow. It is said that her assertion that she will not return is believable and consistent with medical opinion and not tactical manoeuvring. Mother relies on various documentation to seek to establish this point.[36]I agree with and adopt MacDonald J’s approach in RA & LA [2026] EWHC 1396 (Fam)) to Article 13(b), namely: at [29]:
“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.”
[37]The central issue is whether, on a balance of probabilities, there is a grave risk that a return to Country A would expose G to physical or psychological harm or otherwise place him in an intolerable situation. The mother’s physical and mental health, and the impact on G if a return is ordered is an important factor in that determination.[38]I remind myself:(1) that I need to undertake an exercise of risk assessment and risk management based on the evidence available, which is to be evaluated summarily,(2) it is recognised that separation of the child from the abducting parent can establish a grave risk, see for instance Baker LJ in IG (A Child) (Child Abduction, Habitual Residence, Article 13(b) [2021] EWCA Civ 1123, and(3) I must examine, in concrete terms, the situation in which G would be on return.[39]Lord Wilson in Re S (supra) at [34] highlighted:
“The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court assessment of the mother’s mental state if the child is returned.”
[40]An important factor is whether AM would return to Country A if G were returned. I bear in mind that I need to closely scrutinise mother’s assertion that she will not accompany G as it is an unusual one to make as per Peter Jackson LJ in Re R (Child Abduction: Parent's Refusal to Accompany) (supra) at [36]; in doing so I make a reasoned assessment of the degree of likelihood of the parent not returning and then factor that into the overall assessment of whether Article 13(b) has been satisfied.[41]I have had full regard to Dr Brow’s report in relation to mother’s condition and prognosis, and I assess the evidence on its merits, and consider it to the question of the risk of harm to G upon return.[42]The germane questions can be described as these. What is the nature of the risk? What is the likelihood of the risk materialising? And what is the consequences of the risk materialising for G? The prospective risk is, it is said, mother’s physical and mental health. It is not enough for it to be a ‘real’ risk; it must have reached such a level of seriousness that it can be characterised as ‘grave’.[43]At its highest, Dr Brow’s evidence is that AM presents with severe anxiety and moderate depression with occasional panic attacks and suffers from ongoing headaches with migraines, which are mildly disabling and moderately disabling in Country A. She has a diagnosis of Unspecified with Mixed depressive and Anxiety disorder and Migraine, and he recommends CBT and a psychological assessment. He described at paragraph 18 that, “…I was concerned to hear that during and following her court appearances, when she perceived the chances of retaining custody of her young son in [Country B] as “slim” [Mother] had suffered significant suicidal ideation. On the BDI rating scale [Mother] wrote “if the trap closes in on me what other options do I have? I would like to kill myself.” At paragraph 90 it is said that “…The GP should be aware that [G] is potentially vulnerable should matters between [Mother] and her ex-partner escalate to the point that [Mother’s] anxiety and depressive symptoms increase and she becomes significantly unwell. The GP should refer to safeguarding as necessary.” Dr Brow concludes at paragraph 94 that whilst the mother’s mood has improved since returning to the UK, her anxiety and depressive symptoms “have increased to the point of some suicidal ideation due to her fear of returning” to Country A. He further concludes at that: “96. In my opinion, [Mother] would likely suffer a rapid deterioration in her physical and mental health which could escalate to suicidality should she return to [Country A]. The same would certainly apply should she be separated from [G]. She has previously made suicidal threats, but has never acted on these. I note that there is an additional risk to women [Mother’s] age of depression and anxiety associated with perimenopause and menopause; ‘Menopause increases vulnerability to depression and anxiety, perhaps via estrogen fluctuations affecting serotonin and GABA. Underlying neuroticism and contemporaneous adverse life events are also risk factors for menopausal decompensation with depression.’ The recognised challenges faced by most women in menopause regarding loss of identity are likely to be ameliorated for [Mother] by focussing on her career as [G] grows more independent.”97. However [Mother]’s friend [X] confirmed that it would be very difficult for [Mother] to continue to function in [Country A] in the absence of suitable job opportunities for her.Compounded with the other factors of memories of childhood abuse and her political dissonance, in my opinion it is likely [Mother]’s anxiety and depressive disorders could escalate triggering more severe and frequent migraines if she was either separated from [G] or coerced into moving to [Country A]. Whilst I am not a neurologist, I do have general medical training and experience of migraine and in my opinion, [Mother]’s migraines would most likely become moderately disabling should she return to [Country A]. There would also be a deleterious ‘knock on’ effect on her depression and anxiety symptoms.98. This turn of events would in my opinion, inevitably deleteriously impact [Mother]’s ability to parent [G].99. [Mother]’ s headaches and migraines are without doubt at least partially psychosomatic in nature. Although [Mother] would be “devastated” to be separated from her child, she asserted at assessment with me that she was unwilling to return to [Country A] as she “felt dead” there and had no means of earning a living, despite great efforts. She hasworked hard to reach her level of expertise, and it is unlikely that she could find a role that would suit her educational level.100. Finally and crucially, there is a well-recognised bi-directional association between Migraine and Depressive disorder and Anxiety disorder and the concomitant mixture of all three conditions renders the sufferer vulnerable to significant and potentially rapid deterioration which could have an enormous impact on the sufferer’s ability to sustain a reasonable level of mental and physical health which is desirable for any parent – particular a single parent - ‘Depression, migraine and anxiety are comorbid disorders and can lead to increased financial burden, disability and poor treatment outcomes… those with anxiety, depression and migraine were more likely to be classified as having a severe disability per the MIDAS scale compared to migraine and depression alone as well as migraine and anxiety alone. Lastly, those with migraine, anxiety and depression are less likely to respond to treatments’”.[44]I also have regard to the father’s witness statement dated 18 May 2026, where he recollects the following:
“On [Mother’s] return to Country A I knew nothing about her suicidal ideation. I take this seriously and do not minimise it; however, I note that this episode occurred in [Country C], not in [Country A], arising from relational disappointment rather than from any particular living environment. This is a further illustration of the point I make throughout: [Mother’s] mental health difficulties follow her across jurisdictions and are not caused or resolved by location”
The document was prepared as a candid and comprehensive account of our relationship history in its entirety (this document was supposed to help me better understand the difficulties of our relationship) — including the volatility, the conflict, the suicidal episodes in locations other than [Country A], and the consistent pattern of emotional difficulty that presented regardless of where we were living. My writings do not support the proposition that Country A caused [Mother’s] difficulties. It supports the proposition that those difficulties have been a constant feature of her presentation across every location and every phase of our relationship — which is precisely the argument I advance”[45]Further in his final witness statement dated 8 June 2026 he states that, “…. I do not underestimate the potential impact of mental health difficulties; however, I believe the picture in the report is one-sided and based on self-reporting…” [4]. He also refers to the possibility that mother has a borderline personality disorder.[46]I note that the GTGP states at paragraph 70 under the heading of ‘The child's separation from the taking parent, where the taking parent would be unable or unwilling to return to the State of habitual residence of the child’ and the subheading of ‘iv. Medical or family reasons concerning the parent’ that:
“Where medical reasons involving the taking parent are established, the characteristics and seriousness of the medical condition (physical or psychological) and the possibility of suitable medical treatment in the State of habitual residence may be considered to assess the merits of the taking parent’s inability to return. If necessary treatment is accessible or can be arranged, the alleged obstacles to the taking parent’s return may be lifted. There may be instances, however, where the availability of medical treatment may not be sufficient to lift the obstacles to the taking parent’s return. This may be the case, for example, if the taking parent risks an extreme deterioration of his or her psychological health (footnote 105), if he or she were to return to the State of habitual residence. In such instances, the court would have to assess the asserted grave risk to the child, as described above in paragraphs 63 and 66. As part of its assessment, the court would consider any protective measures to protect the child from the grave risk upon his or her return to the State of habitual residence.”
[47]In footnote 105, the GTGP states:
“See, e.g., Director-General, Department of Families v. R.S.P. [2003] FamCA 623, 26 August 2003, Full Court of the Family Court of Australia (Australia) [INCADAT Reference: HC/E/AU 544] where the Court found, on the basis of unchallenged evidence of a psychiatrist, that if the child were returned there would be a grave risk the taking parent would commit suicide, and that the effect of the taking parent’s suicide on the child would have been devastating. See also: Re S. (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 A.C. 257, 14 March 2012, United Kingdom Supreme Court (England and Wales) (the UK) [INCADAT Reference: HC/E/UKe 1147] where the Court accepted medical evidence at trial that the health of the taking parent, who suffered from a form of Post-Traumatic Stress Disorder known as Battered Women's Syndrome, would suffer greatly if she were required to return to Australia, and in the light of the fragility of the taking parent’s psychological health, the protective measures offered would not obviate the grave risk that, if returned to Australia, the child would be placed in an intolerable situation.”
[48]Despite the deficiencies in this report as highlighted by Mr Langford (albeit, Dr Brow did have sight of records from Country A regarding treatment for migraine, anxiety and depressive disorder), I accept the conclusion of this report bearing in mind that it was predicated on a formal mental health examination. I determine, therefore, that the risk of deterioration in mother’s mental health and suicidality would result in a grave risk to G of physical or psychological harm or otherwise place him in an intolerable situation on return. I also determine that same risk would apply should mother be separated from G (as outlined by Dr Brow), and it would in turn have an effect in her functioning as a parent. I note that GTGP describes that the risk must be real and reach a level of seriousness to be characterised as “grave”. The risk of suicidality and its consequences to G are clear.[49]I also conclude, on balance, that it is likely that AM would not return to Country A if I were to make a return order for G. I accept Ms Knapman’s submission that the totality of the evidence demonstrates that her assertion, that she will not return to Country A if a return order was made, is believable, consistent with professional medical opinion and not a tactical manoeuvre. I have regard to the direction of Peter Jackson LJ in Re R (above) when he states that I should have regard to the family history, any professional advice, the reasons for not returning and the possibility of it being tactical and the chance of the position changing. Whilst I accept that at first mother’s evidence was, in the majority predicated on issues relating to consent, habitual residence and financial deprivation, the entirety of the evidence and information and professional advice suggests that she will not return despite being the primary carer for G. I also have regard to the fact that AM and G have settled immigration status in Country B. I factor this conclusion into the evidence as a whole as to whether mother has established an Article 13(b) grave risk to the child if a return order was made, as I am required to do, R (Child Abduction: Parent's Refusal to Accompany) (supra) at [38].[50]In the alternative if AM did return with G to Country A, the mother’s mental health, I determine, would on balance, deteriorate; she would likely suffer increased migraines which would be ‘moderately disabling’, and would have as Dr Brow states, and which I accept, have, “… a deleterious ‘knock on’ effect on her depression and anxiety symptoms, and the suicidality could materialise. Either way, this would result in a grave risk to G of physical or psychological harm or otherwise place him in an intolerable situation. Whilst there is no evidence that medical treatment would be unavailable to the mother in Country A, the “rapid deterioration” (as put by Dr Brow) in her physical and mental health, which “could lead to suicidality” materialises at the point when she returns, or is separated from G. In those circumstances, the protective measures would not, on balance, prevent the deterioration or risk of suicidality. As said by Holman J in KS and MK [2015] EWHC 3276 (Fam) at [21], “…Patently, if the effect of proceedings of this kind, or an enforced return under the Hague Convention, would be at all likely to induce a mother actually to kill herself, the effect on the child, both immediately and frankly lifelong, could be devastating.”[51]If AM did not return to Country A, NV would be his primary carer for G. This situation, also would in my conclusion lead to a grave risk to G of physical or psychological harm or otherwise place him in an intolerable situation not least because:(1) G would also be faced with the same grave risk and intolerable situation by reason of his mother suffering a deterioration and risk of suicidality,(2) G would be separated from his primary carer with whom G has spent his entire life, and(3) contact arrangements would be complex. The effect on G from the significant loss of family time with this mother, and the effect on her of the separation gives rise, amongst other matters, to a grave risk and places G’s in an in intolerable situation.[52]I am satisfied that this risk cannot, in my view, be mitigated or managed by way of the protective measures or otherwise. As stated by the Court of Appeal in Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415, the Convention should not itself become an instrument of harm. If effective protective measures are not in place at the point of return in a case where otherwise a grave risk exists, it is reasonable to infer that harm to the child may well follow.

Conclusion

[53]Conclusion I am satisfied that the mother can bring herself within the exception provided by Article 13(b) of the Convention. In the circumstances, I determine that Article 13(b) has been satisfied, and in those circumstances, I am not prepared to exercise my discretion to return G to Country A. Although the effect of the mother establishing a defence under the Convention is to give the court a discretion whether to order a return, as Lady Hale observed in Re D (supra) at [55], "it is inconceivable that a court which reached the conclusion that there was a grave risk that the child's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate".[54]Father’s application is, therefore refused, and I invite counsel on what further orders I should now make.

Postscript

[55]Postscript Prior to handing down this judgment, father sought to oppose the publication. Ms Gaunt submitted at the hearing on 25 August 2026 that:(1) there is no novel point of law,(2) there is no wider public interest,(3) that the factual matrix for this family would allow for members of the local community to identify G,(4) G’s Article 8 rights would not be protected, and(5) publication should not occur until the time limit for permission to appeal has lapsed. Mother disagrees, albeit she agrees that references to countries and locations should be anonymised.[56]The starting point is the principle of open justice. It is usually in the public interest for judgments to be published, even where they arise from private proceedings, and even where there is no particular public interest in the individual case / judgment - subject to any countervailing Article 8 issues, which may justify some anonymisation but do not necessarily preclude publication entirely. A balancing exercise is required having regard to all the circumstances and Articles 6, 8 and 10 of the ECHR. Prior to deciding to publish this judgment, parties were notified and had an opportunity to make representations about publication and anonymisation.[57]It is possible in my view to strike a balance between the public interest in publication and what is required in order to minimise interference with the Article 8 rights to private and family life by anonymisation of names, specific locations and countries, i.e., this would sufficiently preserve the anonymity of the child and members of the family, and any jig saw identification. The nature, likelihood and severity of the risk identified by father is mitigated by the anonymisation of names, specific locations and the countries.[58]Finally, without notice, mother sought to displace the normal provision in relation to costs. This was despite the fact that Ms Knapman had appeared pro bono via Advocate, and that an agreed order had been submitted which provided for ‘no order as to costs save for a detailed assessment of the legally aided parties’ certificate’. I directed that this provision stands unless mother makes a formal application that seeks an alternative order by 4pm on 28 August 2026.[59]As mentioned at the hearing, I encourage and hope that the parents can establish a working and respectful relationship with each other. This would be in G’s best interests given his love for both his parents. I wish all parties, including G, all the best for the future.