[2025] EWHC 795 (Fam)

Just as with settlement, the burden of establishing the grave risk exception lies on the respondent to an application.

The 1980 Hague Convention was given legislative effect in this jurisdiction as a schedule to the Child Abduction and Custody Act 1985, which came into force in 1986. Although I have not undertaken a comprehensive trawl, I do not think it is much of an exaggeration to say that for the first two decades of its operation the number of reported cases in which the Article 13(b) exception was found established could be counted on one hand. Respondents faced significant obstacles in proving the existence of the requisite grave risk. The threshold was very high and even when met, courts retained a discretion to order a return and would only refuse to do so in exceptional cases. Respondents who refused to return, thus causing children to be separated from them, were given short shrift by the application of the ‘coach and four’ principle first articulated in C v C (Abduction) (Rights of Custody) [1989] 1 WLR 654. It was virtually taken as read that undertakings would offer sufficient protection to ameliorate any perceived risk without proper (or usually any) consideration as to whether these would have any impact at all in the Requesting State.

One major obstacle arose from the burden of proof. It was only in rare cases that the court would permit oral evidence to be heard. But without oral evidence, establishing the existence of a risk on the basis of disputed allegations was almost impossible. The difficulty for respondents was encapsulated in the following passage from the Court of Appeal decision in In re F (A Minor) (Child Abduction) [1992] 1 FLR 548:

The approach which the courts today adopt to Article 13(b) is very different from that which I have just described. Change was brought about through a series of judgments given in the House of Lords and the Supreme Court, primarily by Baroness Hale, and in the Court of Appeal, primarily by Moylan LJ. The effect of these was to refocus Article 13(b) in order to achieve its intended purpose of protecting vulnerable children from being exposed to serious harm.

The leading authorities now are Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27(‘Re E’) and Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10. The core principles expressed in those cases have been refined by the Court of Appeal in subsequent cases. A helpful summary of the key principles and the approach now adopted was set out by Baker LJ in Re IG (A Child) (Child Abduction: habitual residence: Article 13 (b)) [2021] EWCA 1123 (‘Re IG’) at paragraph 47:

“(1)

The terms of Article 13(b) are by their very nature restricted in their scope. The defence has a high threshold, demonstrated by the use of the words "grave" and "intolerable".

(2)

The focus is on the child. The issue is the risk to the child in the event of his or her return.

(3)

The separation of the child from the abducting parent can establish the required grave risk.

(4)

When the allegations on which the abducting parent relies to establish grave risk are disputed, the court should first establish whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then establish how the child can be protected from the risk.

(5)

In assessing these matters, the court must be mindful of the limitations involved in the summary nature of the Hague process. It will rarely be appropriate to hear oral evidence of the allegations made under Article 13(b) and so neither the allegations nor their rebuttal are usually tested in cross-examination.

(6)

That does not mean, however, that no evaluative assessment of the allegations should be undertaken by the court. The court must examine in concrete terms the situation in which the child would be on return. In analysing whether the allegations are of sufficient detail and substance to give rise to the grave risk, the judge will have to consider whether the evidence enables him or her confidently to discount the possibility that they do.

(7)

If the judge concludes that the allegations would potentially establish the existence of an Article 13(b) risk, he or she must then carefully consider whether and how the risk can be addressed or sufficiently ameliorated so that the child will not be exposed to the risk.

(8)

In many cases, sufficient protection will be afforded by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there.

(9)

In deciding what weight can be placed on undertakings, 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 for enforcement in the requesting State, in the absence of compliance.

(10)

As has been made clear by the Practice Guidance on "Case Management and Mediation of International Child Abduction Proceedings" issued by the President of the Family Division on 13 March 2018, the question of specific protective measures must be addressed at the earliest opportunity, including by obtaining information as to the protective measures that are available, or could be put in place, to meet the alleged identified risks.”

Further guidance as to the gravity of the risk needed to satisfy Article 13(b) can be found in Re E, where Baroness Hale said at paragraphs 32 and 33:

“…the risk to the child must be "grave". It is not enough, as it is in other contexts such as asylum, that the risk be "real". It must have reached such a level of seriousness as to be characterised as "grave". Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm.

…the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" (emphasis supplied). As was said in Re D, at 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'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. 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. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent…”

In the majority of Article 13(b) cases, the asserted risks arise from allegations of domestic abuse which, typically, are denied by the applicant and incapable of resolution through a summary process without oral evidence. The guidance as to the importance of identifying protective measures and ensuring their effectiveness, summarised in Re IG, is aimed primarily at cases of this type.

Not all risks, however, arise from the alleged conduct of the applicant parent; in some cases they may have nothing to do with him. In Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, for example, Baroness Hale made clear that a lengthy delay in the bringing or resolution of proceedings can give rise to the level of intolerably contemplated by Article 13(b). This principle was applied in RS v KS [2009] EWHC 1494 (Fam), a case where by the time of the hearing the child has been in England for some two years and become settled, but the ‘settlement’ exception did not arise as the proceedings had been issued within the requisite twelve month period. Her decision was later approved on the facts by the Court of Appeal in Re L-S (A Child) [2017] EWCA Civ 2177, although McFarlane LJ (as he then was) highlighted the need for great caution ‘with respect to the extent to which the mere passage of time may be deployed in establishing an intolerable situation sufficient to satisfy Article 13(b)’ and held that ‘[t]he passage of time in that context, rather than being a simple matter of calculation, must… be viewed through the lens of the requirements of Article 13(b)’. In cases such as these, the risks are difficult to ameliorate with protective measures. The court’s essential task is to evaluate whether they have reached such a level that they can properly be classified as ‘grave’.

The conflict in Ukraine is the first time that a Contracting State to the 1980 Hague Convention has been afflicted by war. The risks arising from a war are, to say the least, challenging to evaluate. I have already highlighted the point made by Hayden J in M v F as to the absence of reliance information.

In this jurisdiction, the risks presented by the war in Ukraine have been considered by a number of judges at first instance: Q v R [2022] EWHC 2961 (Fam) (Williams J); Re Z and X (Children: Article 13(b): Return to Kyiv) [2023] EWHC 602 (Fam) (DHCJ Dexter Dias KC (as he then was)); Re N (A Child) (Ukraine: Art. 13(b)) [2024] EWHC 871 (Fam) and Re N (A Child) (Ukraine: Art. 13(b)) (No 2) [2024] EWHC 1282 (Fam) (DHCJ McKendrick KC (as he then was)); M v F (Hayden J); Re Z and X (Visit to Ukraine) [2024] EWHC 314 (Fam) (Cobb J). The overarching theme of those authorities is that each case is intensely fact-specific; the existence of the war is not per se a reason to refuse to return a child, although for obvious reasons it is highly relevant. The court must scrutinise with care the circumstances of the proposed return.

I draw from those authorities that the matters of potential relevance to the issue of risk under Article 13(b) include (i) the part of Ukraine to which the child is to return; (ii) the age of the child; (iii) the circumstances of the parents; (iv) whether the child’s primary carer is the person who wishes the child to return; and (v) the overall circumstances of the child both in this jurisdiction and in Ukraine. This is not intended to be an exhaustive list.