FD25P00086 - [2025] EWHC 2190 (Fam)

The law in respect of grave risk of harm or intolerability pursuant to Article 13(b) was considered by the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 [2012] 1 AC 144.

The law was summarised by MacDonald J in E v D [2022] EWHC 1216 (Fam) at [29] 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. 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’.

v)

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.

vi)

Where the defence under Art 13(b) is said to be based on the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child’s situation would become intolerable, in principle, such anxieties can found the defence under Art 13(b).”

In Re A (Children) (Abduction: Article 13(b)) [2021] EWCA Civ 939 [2021] 4 WLR 99 Moylan LJ stated as follows:

“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 Inre 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.

95 But, I repeat, a judge must be careful when undertaking this exercise because of the limitations created by it being invariably based only on an assessment of the written material. A judge should not, for example, discount allegations of physical or emotional abuse merely because he or she has doubts as to their validity or cogency…

96 If the judge concludes that the allegations would potentially establish the existence of a grave risk within the scope of article 13(b), then, as set out in In re E, at para 36, the court must “ask how the child can be protected against the risk”. This is a broad analysis because, for example, the situation faced by the child on returning to their home state might be different because the parents will be living apart. But, the court must carefully consider whether and how the risk can be addressed or sufficiently ameliorated so that the child will not be exposed to a grave risk within the scope of article 13(b). And, to repeat what was said in In re E, at para 52: “The clearer the need for protection, the more effective the measures will have to be.””

In relation to the ability of protective measures to meet the reasonably assumed level of risk, MacDonald J stated the following in E v D (supra):

“i)

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.

ii)

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.

iii)

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.

iv)

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.

v)

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.

vi)

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.”

The mother alleges in her written evidence that the father “badmouthed” her and portrayed her as a bad mother in an attempt to bring about parental alienation (first statement), and that he was deeply controlling and emotionally abusive. She raised concerns with the Guardian regarding verbal and emotional abuse towards her and controlling behaviour both in Zimbabwe and during his recent visit to the UK. She also alleges that the father does not value education and that T’s overall welfare and education would suffer were he to be returned to Zimbabwe. There was also an audio recording of the father submitted by the mother, without a transcript of what was said, but it was not possible to make any inferences from that recording which were relevant to this defence. The mother asserts that if T were to be returned, she would not return. I accept that to be true.

In my view the defence is not made out. The mother’s complaints, on proper analysis, are not serious or consistent enough to satisfy the test. Further, the fact that the mother would likely not return is insufficient to tip the balance in favour of the test succeeding, for the father could still look after T, and the Zimbabwe court could consider suitable contact in light of the mother’s refusal to enter Zimbabwe, including visiting the mother in England during the holidays. Taken at its highest, the evidence is not capable of amounting to a grave risk that T’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.