SD v BC [2026] NICA 3 — “Speculation, Sibling Disruption and Practical Hardship” Rarely Meet Article 13(b): Hague Return Reaffirmed as a Jurisdiction-Selection Remedy

1) Introduction

SD v BC is a decision of the Court of Appeal in Northern Ireland (Keegan LCJ, O’Hara J and Smyth J) arising under the Child Abduction and Custody Act 1985, which incorporates the Hague Convention on the civil aspects of International Child Abduction 1980. The father (SD) sought the return of his son MC to the Republic of Ireland following the mother’s (BC) relocation with the child to Northern Ireland.

The key issues were:

Whether MC was wrongfully removed from his place of habitual residence (the Republic of Ireland) so as to trigger the mandatory return duty under Article 12.
Whether the mother could resist return under Article 13(b) on the basis of an alleged grave risk of psychological harm or an intolerable situation, relying on: (i) the father’s pending criminal proceedings and possible imprisonment; (ii) the prospect of sibling separation (MC’s half-sibling KL remaining in Northern Ireland); and (iii) practical/housing difficulties for the mother in Ireland.
On appeal, whether the trial judge’s evaluation was inadequately holistic and/or insufficiently attentive to welfare/ECHR considerations.

MC’s interests were represented by the Official Solicitor. MC expressed a clear preference to live in the Republic of Ireland; KL expressed a preference to remain in Northern Ireland, coupled with uncertainty about future options.

2) Summary of the Judgment

The Court of Appeal dismissed the mother’s appeal and affirmed the return order. It held that:

MC was habitually resident in the Republic of Ireland when removed on 2 August 2025; the father had and was exercising custody rights; the removal was wrongful.
None of the mother’s Article 13(b) grounds met the required threshold of grave risk or intolerability.
The trial judge’s evaluation was properly reasoned, within discretion, and not vitiated by legal error; welfare “merits” were constrained by Article 16.

The Court granted a short stay until 4pm on 17 January 2026 to reduce disruption to MC’s schooling and to permit the parties to seek interim arrangements in the already-seised Naas District Court.

3) Analysis

A. Precedents Cited

1. Re E (Children) (Abduction: Custody of Appeal) [2011] 2 FLR 758 and Re E [2011] UKSC 27

These authorities anchored the Court’s approach in two ways:

Nature of Hague proceedings: The Court relied on the Supreme Court’s explanation that Hague applications are not welfare determinations about upbringing, but proceedings deciding where welfare will be decided—reinforcing the Convention’s “summary return” architecture and the limited role of welfare at this stage.
Article 13(b) threshold and structure: By adopting the Re E formulation (as later adopted locally), the Court reaffirmed that the risk must be grave, not merely “real”, and emphasised the standard two-stage exercise: (i) is there grave risk/intolerability on the facts; and (ii) can protective measures in the state of habitual residence address it.

2. Neulinger and Shuruk v Switzerland [2011] 2 FCR 110

The Court treated Neulinger as context rather than a template, aligning with Re E’s caution against reading Strasbourg jurisprudence as requiring a full merits-based welfare inquiry in Hague cases. The appeal court distinguished the “particular facts” of Neulinger (including the extraordinary delay) and rejected its deployment to demand a broader welfare rehearing here.

3. X v Latvia [2014] 1 FLR

The mother relied on X v Latvia to argue for more explicit evaluation of welfare-linked impacts. The Court accepted the general proposition that the Convention is “not blind” to welfare/human rights, but held that X v Latvia does not displace the Hague structure: welfare considerations are channelled through the Convention’s exceptions (notably Article 13) and remain constrained by Article 16’s bar on deciding welfare merits in the requested state.

4. F&M [2024] NICA 38 and F and M (Hague Convention/grave risk) [2014] NICA 38

These Northern Ireland decisions were used for:

Appellate restraint: an appeal succeeds only if the judge was “wrong” (error of law/misapplication/unsustainable conclusion), not because the appellate court would have weighed matters differently.
Grave risk articulation: the Court quoted the local adoption of Re E’s explanation that “grave” qualifies the risk and implies a heightened seriousness threshold.

5. Re K (Children) [2014] EWCA Civ 1195

Cited by the mother in support of sibling-separation harm, Re K was treated as materially distinguishable because it was a welfare case concerning permanent placement outcomes. The Court stressed that sibling relationship questions are for the welfare court in the habitual residence jurisdiction, not determinative at the Hague “return” stage.

6. C v M [2023] EWHC 1182

This was the mother’s strongest Hague comparator on sibling separation. The Court agreed with the trial judge that it was factually remote: the family structure, geography, and intensity of the separation consequences differed. The Court also noted that in the present case the family’s routine already involved cross-border movement and substantial contact periods, reducing the likelihood that a return order would create the kind of intolerable rupture addressed in C v M.

B. Legal Reasoning

1. The Convention’s mandatory “return” default (Article 12)

The Court began with the Convention’s architecture: where a child is wrongfully removed and proceedings are commenced within one year, Article 12 provides the court “shall order the return of the child forthwith”, unless an Article 13 exception is made out. The Court found (and the appeal did not disturb) that MC was habitually resident in the Republic of Ireland and that the father was exercising custody rights at the time of removal.

2. Article 13(b): “grave risk” is a high threshold; speculation is not enough

The mother’s primary Article 13(b) argument was that the father’s pending trial created a grave risk because he might be imprisoned. The Court endorsed the trial judge’s treatment of this as speculative:

The father pleaded not guilty; outcome and sentencing were uncertain.
There was no concrete, evidenced pathway from the pending charge to grave psychological harm or intolerability for MC.
Even if conviction occurred, the welfare court in the Republic of Ireland was best placed to evaluate implications for care arrangements.

The Court’s approach reflects a core Hague principle: Article 13(b) is not a vehicle for pre-trying uncertain future contingencies, particularly where the habitual residence court can manage them through welfare jurisdiction.

3. Sibling separation: relevant, but not automatically “intolerable” in a Hague context

The Court accepted sibling relationships matter, but held the mother’s case did not meet the “grave risk/intolerable situation” standard because:

Any disruption was interim pending welfare determination in the already-seised Naas District Court.
Cross-border movement and contact formed part of the family’s established pattern.
MC wanted to return to the Republic of Ireland; KL’s wishes (to remain in Northern Ireland) were noted but were also mixed/uncertain in contingencies.
The cited authorities did not compel a conclusion that the circumstances here reached Article 13(b) gravity.

Importantly, the Court reframed the argument: the Hague court decides the appropriate forum for welfare decision-making, not the final sibling placement arrangement. The sibling issue was therefore principally for the welfare court.

4. Practical/housing difficulties: not a Hague “defence” unless they cross the Article 13(b) threshold

The mother asserted that having surrendered Irish social housing, she could not be rehoused, creating an intolerable situation. The Court acknowledged real-world difficulty but held it did not amount to grave risk/intolerability, emphasising:

The parties had resources (employment; maintenance payments).
The mother had alternative proposals (hotel/rental) while proceedings were ongoing.
Interim arrangements could be sought promptly in the Republic of Ireland.
Practical impediments cannot be used strategically to prevent the habitual residence court from determining welfare.

5. Welfare/ECHR arguments on appeal: constrained by Article 16 and consistent with Re E

The mother argued that the judge failed to make a “proper welfare assessment”. The Court rejected this as misconceived in a Hague return appeal:

Article 16 prevents the requested state from deciding welfare merits unless return is refused.
Welfare and Article 8 ECHR considerations are addressed through the Convention’s exceptions (especially Article 13), not by substituting a full welfare inquiry for the Convention’s summary mechanism.
Neither Neulinger and Shuruk v Switzerland [2011] 2 FCR 110 nor X v Latvia [2014] 1 FLR required the court to depart from that structure on these facts.

6. Appellate posture: no re-weighing; error-based intervention only

Applying the accepted appellate standard, the Court held the trial judge’s reasoning was holistic and open to him on the evidence. The appeal largely invited re-evaluation rather than identification of a legal or evaluative error.

C. Impact

Reinforcement of a disciplined Article 13(b) threshold: The decision underscores that (i) speculative future events (e.g., possible imprisonment), (ii) interim sibling disruption, and (iii) logistical or housing difficulty will not ordinarily meet “grave risk/intolerability” absent concrete evidence of serious harm.
Cross-border (Ireland/Northern Ireland) practicality: The Court’s reasoning reflects the practical reality of frequent cross-border family movement; the geographic proximity and an already-seised Irish court were treated as important in assessing whether return would be “intolerable”.
Clear message against “forum-blocking” by hardship narratives: While hardship is acknowledged, the Court cautioned against using practical difficulties as a strategy to defeat the jurisdiction of habitual residence.
Procedural guidance: The short stay to finish the school week and facilitate interim applications signals a pragmatic approach: enforcing prompt return while reducing unnecessary disruption and enabling swift welfare case management in the proper forum.

4) Complex Concepts Simplified

Habitual residence: the country that is the child’s real home in fact—where their life is principally based. If a child is habitually resident in one state, that state’s courts are generally the right forum to decide long-term welfare.
Wrongful removal/retention (Article 3): moving/keeping a child across borders in breach of another person’s custody rights that were actually being exercised.
Article 12 (“shall return”): if the child was wrongfully removed and the case is brought within one year, return is the default and is mandatory unless a defence is proved.
Article 13(b) “grave risk” / “intolerable situation”: a narrow exception. The risk must be serious in degree—something well beyond ordinary upset, inconvenience, or disruption from moving back.
Article 16: prevents the court in the “requested” state (here, Northern Ireland) from deciding who should have custody as a welfare matter unless it first refuses return. Hague proceedings are therefore not a substitute for custody litigation.
Official Solicitor: an independent representative appointed to present the child’s interests and ensure the child’s voice is properly placed before the court.

5) Conclusion

SD v BC [2026] NICA 3 is a firm reaffirmation of the Hague Convention’s core function as a jurisdiction-selection and prompt return mechanism. The Court of Appeal confirmed that Article 13(b) remains a tightly controlled exception: uncertain future risks (like possible incarceration), foreseeable but interim disruption to sibling arrangements, and practical rehousing difficulties—without more—will not ordinarily amount to “grave risk” or an “intolerable situation”.

The judgment’s broader significance lies in its disciplined separation of roles: the Hague court decides return (and thus the proper forum), while the welfare court in the state of habitual residence decides the child’s longer-term arrangements, equipped to assess sibling relationships, parental circumstances, and any developing risks in a full welfare inquiry.