![FD25P00187 - [2025] EWHC 2629 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
Harm
Harm
As is well known, the proper approach to Art 13(b) and the question of grave risk of exposure to physical or psychological harm or otherwise place the child in an intolerable situation was examined and clarified by the Supreme Court in Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144. The applicable principles may be summarised as follows:
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.
The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process.
The risk to the child must be 'grave'. It is not enough for the risk to be 'real'. It must have reached such a level of seriousness that it can be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two.
The words 'physical or psychological harm' are not qualified but do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation'. 'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'.
Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. Where the risk is serious enough the court will be concerned not only with the child's immediate future because the need for protection may persist.
Pursuant to the approach set out in Re E , the court is required to evaluate the evidence against the civil standard of proof, whilst being mindful of the limitations involved in the summary nature of the Convention process. The balancing of the tension between the need to evaluate the evidence against the civil standard of proof and the summary nature of the proceedings means that the court is not required to engage in a fact-finding exercise to determine the credibility of the matters alleged to ground the exception under Art 13(b). Rather, the court proceeds on the basis of assuming the risk at its highest by asking whether, if the allegations are true, there would be a grave risk that the child would be exposed to physical or emotional harm or otherwise placed in an intolerable situation. If the answer is yes, the court goes on to consider what protective measures sufficient to mitigate the risk assumed can be identified.
Whilst the evaluation of Art 13(b) proceeds on the assumption that the allegations made by the respondent are true, that does not mean that the court simply accepts, unquestioningly, the harm or harms alleged by the respondent. If this were the position, all a respondent would need to do to prevent a return order by reliance on Art 13(b) would be to simply assert a form of harm against which protective measures could not be ineffective. Accordingly, 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). Having quoted the judgment of Baroness Hale in Re E, Moylan LJ observed in Re A (Children) (Abduction: Article 13(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.”
The method of applying Art 13(b) of the 1980 Hague Convention articulated in Re E thus forms part of the court's general process of reasoning in its appraisal of the exception under Art 13(b) (see Re S (A Child)(Abduction: Rights of Custody) [2012] 2 WLR 721), and this process will include evaluation of the evidence before the court in a manner commensurate with the summary nature of the proceedings.
If the court concludes that the assertions of harm 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:
The court must examine in concrete terms the situation that would face a child on a return being ordered. If the court considers that it has insufficient information to answer these questions, it should adjourn the hearing to enable more detailed evidence to be obtained.
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.
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.
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.
There is a distinction to be drawn between the practical arrangements for the child's return and measures designed or relied on to protect the children from an Art 13(b) risk. The efficacy of the latter will need to be addressed with care.
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.
With respect to undertakings, what is required is not simply an indication of what undertakings are offered by the left behind parent as protective measures, but sufficient evidence as to extent to which those undertakings will be effective in providing the protection they are offered up to provide.
Within the foregoing context, there is an imperative need for the applicant's proposals for protective measures to be included in the directions for the applicant's statement, including the terms of the undertakings being offered.
Whilst the court retains a discretion to order the return of the subject child where the exception provided by Art 13(b) is established, where the court has concluded that the harm exception is made out and that no protective measures can be put in place that will sufficiently meet 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.