No: FD25P00282 - [2025] EWHC 2144 (Fam)

In relation to the Article 13(b) defence, there was again broad agreement at the Bar on the law and I do not understand there to be any issue between them as to the approach that I must adopt. Although Ms Green took me to passages from the decision of the Supreme Court in Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144 and the Court of Appeal in Re A (Children)(Abduction: Article 13(b))[2021] EWCA Civ 939, for the purposes of this judgment I propose to adopt the helpful summary of the effect of those cases set out by MacDonald J in E v D [2022] EWHC 1216 (Fam) at [29] to [33].

“[29.] The law in respect of the defence of harm or intolerability under Art 13(b) 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:

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).

[30.] 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.

[31.] The methodology articulated in Re E 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. Within this context, the assumptions made with respect to the maximum level of risk must be reasoned and reasonable assumptions based on an evaluation that includes consideration of the relevant admissible evidence that is before the court, albeit an evaluation that is undertaken in a manner consistent with the summary nature of proceedings under the 1980 Hague Convention.

[32.] In determining whether protective measures, including those available in the requesting State beyond the protective measures proposed by one or both parties, can meet the level of risk reasonably assumed to exist on the evidence, the following principles can be drawn from the recent Court of Appeal decisions concerning protective measures in Re P (A Child) (Abduction: Consideration of Evidence) [2018] 4 WLR 16 , Re C (Children) (Abduction: Article 13(b)) [2019] 1 FLR 1045 and Re S (A Child) (Hague Convention 1980: Return to Third State) [2019] 2 FLR 194 :

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.

[33.] With respect to undertakings, what is therefore 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.”

In support of this ground Ms Green relies on two broad matters. First, she points to allegations within the mother’s witness statement of physical and emotional abuse that she says has been perpetrated by the father. The mother alleges an assault early on their relationship in 2014, and further assaults from 2017 onwards. She alleges that she sustained a head injury in 2020 and that in 2024 there were two further assaults, one of which was witnessed by B. The mother also points to a protection order made against the father as a result of a complaint by a previous girlfriend who is the mother of the father’s elder child.

The father vehemently denies the mother’s allegations. He has exhibited a Police report of an incident in 2015 in which it is recorded that the mother has “made no allegation of any assault or intimidating behaviour”. He accepts that the mother sustained a sprained ankle in 2017, but argues that this was an accident, as was her 2020 head injury. The protection order in respect of the former partner was made in 2008 and discharged by consent in 2010 and did not involve any violence, threats or harassment of the former partner.

It is not my role within these summary proceedings to conduct a fact finding investigation as to the truth of these allegations, and I am in no position to do so. Taking the risk posed by mother’s allegations of domestic violence at their highest, I can see that a grave risk of harm could arise, particularly given that once of the incidents is said to have taken place in B’s presence. However, I am satisfied that in this case these risks would be ameliorated by the protective measures offered by the father. He does not propose that he and the mother should resume cohabitation; instead he has identified a separate property for the mother and B to live in which he has paid a deposit and some initial rent. He is also willing (on a no admissions basis) to offer undertakings not to remove B from her care or to intimidate, threaten, harass or pester her. Moreover, I am also entitled to assume that the New Zealand courts and authorities are able to assist in protecting the mother and B from any risk of domestic violence. Taking all of these matters into account I am not satisfied that the mother’s allegations of domestic abuse are sufficient to enable her to rely on the Article 13(b) defence.

Ms Green also has a second string to her bow. She argues that the circumstances that the mother and B would face on a return to New Zealand would be intolerable in the sense explained by the Supreme Court in Re E. She argues that the rental property that has been procured by the father is in the South Island, near to where he is currently living, in an unfamiliar part of New Zealand. That the father is not offering to pay the rent on this property, and that the mother and B when they arrive will have no income, no job and be placed in an intolerable situation, effectively controlled by the father, and that B would be being returned to a country of which he has no memory. Ms Green asserts that the mother would not be entitled to any state benefits in New Zealand and points to the fact that the father has not offered to pay for the mother’s air fare (he will meet only B’s) and that the mother has only £2,500 in savings.

For the father, it is said that the mother and B will be returning to a country with which they are wholly familiar (and where B spent the first two years of his life); that the mother has New Zealand residency and would be entitled to work. Following an intervention by me Ms More O’Ferrall also indicated that the father would be prepared to meet the rent on the mother’s property for a longer period.

As to the mother’s entitlement to state benefits in New Zealand, this is not an issue upon which I have received any formal evidence (one way or the other). After the close of submissions, and during the preparation of this judgment I received an email from Ms More O’Ferrall with some AI generated information obtained by the father’s New Zealand solicitors on the benefit position. This indicates that New Zealand has a good “safety net” welfare system. However, the mother’s entitlement to benefits may be contingent on her having retained her residency. Given the late and unsatisfactory nature of this evidence I do not give it any weight.

Whilst I accept that the circumstances of a return would be far from comfortable for the mother and B, subject to the point that I raise below, I consider that they fall significantly short of raising a defence under Article 13(b). Both the mother and B are familiar with New Zealand and the mother is entitled to work there. Whilst the benefit position is not clear, I am satisfied that the mother should able to earn sufficient income to meet her and B’s living expenses (other than rent) whilst there and I note that the protective measures sought by the mother in her witness statement do not extend to asking for the father to supplement her and B’s living expenses (other than rent). From B’s perspective he will be living with his primary carer in the same country that he spent the first two thirds of his life in. Subject to (a) the father agreeing to meet the mother’s air fare (so that the mother can retain her limited savings) and (b) me being satisfied that they will have a property available to them for a reasonable period of time upon their return in order for proceedings about B to be brought before the courts of New Zealand, I do not consider that the Article 13(b) defence arises.

As to the provision of a property, Ms More O’Ferrall indicated that the father would be willing to pay rent for a longer period than initially offered. It seems to me that a reasonable period in these circumstances would be four months from the date of the mother and B’s return, on the basis that the matter would then be before the New Zealand court and the mother would have had sufficient time to explore the benefits position and / or obtain work.

Were the father to agree to provide the further protective measures indicated above, I do not consider that the mother’s arguments, either individually or cumulatively would be sufficient to raise a defence under Article 13(b) of the Convention.