[2025] EWHC 1344 (Fam)

[36] Drawing matters together, Article 13(b) requires the parent opposing a child's return to establish that there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. 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.

[37] We were taken to instances where judges have grappled with this task. In R v P [2017] EWHC 1804 (Fam) at [129], Theis J concluded, having heard evidence, that it was more likely than not that the mother would not return with a five-year-old child, and she refused to make a return order. In Re C (A Child) (Child Abduction: Parent's refusal to return with child) [2021] EWCA Civ 123 ('Re C'), the trial judge, Cohen J, had asked himself what in reality the mother would do, and found (without hearing evidence) that the reality was that she would return. This court upheld his finding [22, 62]. In NP v DP (Hague Convention; abducting parent refusing to return) [2021] EWHC 3626 (Fam), Holman J heard oral evidence and found at [40-41] that there was a high degree of likelihood that the mother would not, in fact, return even if the child was required to return. In Z v Z [2023] EWHC 1673 (Fam), Peel J found at [30] after hearing evidence that a mother undergoing cancer treatment would not return with the children, and that this was based on a genuine decision and not on tactical manoeuvring. In Re A (Retention: Article 13(b): Return to Israel) [2024] EWHC 1879 (Fam) Mr Nicholas Allen KC declined to hear oral evidence and at [85] found on the balance of probabilities that a mother would return with the children.

[38] The summary assessment of whether a parent is likely to return and how they will react to the court's decision will not always be easy, and a reasoned conclusion is unlikely to be disturbed on appeal. In some of the above cases, conclusions were expressed as findings of fact, made on a balance of probabilities. That was unobjectionable in the individual cases, but 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.