FD25P00286 - [2025] EWHC 2175 (Fam)

Fecha: 26-Jun-2025

D The law

D The law

40.

The underlying purpose of the 1980 Hague Convention is to enable the “prompt return of children wrongfully removed to or retained in a Contracting State”.

Art 13 (b)

41.

The Supreme Court examined and clarified the law in respect of the defence of harm or intolerability in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27.

42.

In E v D (Return Order) [2022] EWHC 1216 (Fam) MacDonald J summarised the relevant principles at paragraphs 29 and 30:

"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. 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.

iii)

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.

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 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. …..

In Re E, the Supreme Court made clear that in examining whether the exception in Art 13(b) has been made out, the court is required to evaluate the evidence against the civil standard of proof, namely the ordinary balance of probabilities whilst being mindful of the limitations involved in the summary nature of the Convention process. Within the context of this tension between the need to evaluate the evidence against the civil standard of proof and the summary nature of the proceedings, the Supreme Court further made clear that the approach to be adopted in respect of the harm defence is not one that demands the court engage in a fact-finding exercise to determine the veracity of the matters alleged as grounding the defence under Art 13(b). Rather, the court should assume the risk of harm at its highest and then, if that risk meets the test in Art 13(b), go on to consider whether protective measures sufficient to mitigate harm can be identified."

43.

It is preferable for the judge to adopt this two-stage process under Article 13(b).

44.

The first stage is to evaluate the nature and the severity of the potential risk which it is said will arise if the child is returned to the requesting State, on the assumption that the allegations made by the removing parent of the left behind parent are true. If there are a number of different allegations the court should consider them cumulatively, as a whole. If the court considers that the threshold has been passed it moves on to the second stage.

45.

The second stage is for the court to evaluate the sufficiency and efficacy of the protective measures to determine whether the extent of those measures addresses or sufficiently ameliorates the risk to a level below the threshold of “grave risk” provided for by Art 13 (b)

46.

The exercise requires consideration of the anticipated risk to the child on return. The court must “examine in concrete terms the situation that would actually face” Q on her return to Portugal. See Re IG (A Child) (Child Abduction: habitual residence: Article 13 (b)).

47.

It is clear at a child may suffer harm for the purposes of Art 13 (b) if they witness domestic abuse to a parent or caregiver. Domestic abuse can clearly occur when a person is subject to a pattern or coercive of controlling behaviour. In A-M (A Child: the 1980 Hague Convention) [2021] EWCA Civ 998 the Court of Appeal noted that “the court must be astute to recognise conduct” that forms part of a pattern of “controlling or coercive” behaviour.

48.

In E v F, to which I was specifically referred, Paul Bowen, sitting as a Deputy High Court Judge, noted the increased recognition of coercive and controlling behaviour through the development of domestic case law, particularly F v M [2021] EWFC 4 and Re H-N (Allegations of domestic abuse) [2022] 1 WLR 2681. Re H-N endorsed the definition of controlling or coercive behaviour in Practice Direction 12 J, which derives from the statutory guidance published by the Home Office pursuant to Section 77 (1) of the Serious Crime Act 2015. That guidance identified paradigm behaviours of controlling and coercive behaviour, and is, per Re H-N, relevant to the evaluation of evidence in the Family Court. PD12J defines coercive and controlling behaviour as follows

‘Coercive behaviour’ means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim;

‘Controlling behaviour’ means 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.

49.

The authorities have emphasised the importance of focussing on a pattern of behaviour rather than focussing too heavily on individual incidents. Moreover, a pattern of abusive behaviour is as relevant to the child as to the adult victim. The Domestic Abuse Act 2021 provides that a child who “sees or hears, or experiences the effects of’ of such abuse by or towards a person to whom they are related is considered to be a victim of ‘domestic abuse’ (s 3).

50.

As E v F and A-M makes clear, this developing understanding of controlling and coercive behaviour as a matter of domestic law should inform the approach of the Courts when determining the Article 13(b) defence.

51.

In relation to protective measures it was emphasised by Cobb J in Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415: “Protective Measures need to be what they say they are protective. To be protective, they need to be effective”. [§50]. He summarised the matter:

“Five short points about 'protective measures' merit some consideration within this judgment arising from the appeal:
i)
The requirement for the parties to address protective measures early in the process;
ii)
The importance of the court identifying early in the proceedings what case management directions need to be made, so that at the final hearing the court has the information necessary to make an informed assessment of the efficacy of protective measures;
iii)
The need for the court to be satisfied, when necessary for the purposes of determining whether to make a summary return order, that the proposed protective measures are going to be sufficiently effective in the requesting state to address the article 13(b) risks;
iv)
The status of undertakings containing protective measures, and their recognition in foreign states;
v)
The distinction between 'protective measures' and 'soft landing' or 'safe harbour' provisions.

52.

The father has sought a return of Q to the town X pursuant to Art 11 of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 (“the 1996 Hague Convention2”). I discuss that point below.