AT v SS

Factual and Procedural Background

This case concerns a 5-year-old boy, referred to as the Child, who was wrongfully removed from Holland by his mother, the Respondent, without the consent of the father, the Applicant. The father seeks the summary return of the Child to Holland under the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") and the Council Regulation (EC) No 2201/2003 ("BIIa"). The mother opposes the return, relying on a defence under Article 13(b) of the Convention, claiming that return would expose the Child to grave risk of harm or place him in an intolerable situation.

The parents share dual Afghani and Dutch nationality and have a history of protracted disputes regarding custody and contact arrangements. The Child was habitually resident in Holland before the wrongful removal. Dutch authorities have been involved in the Child’s welfare since 2011, including family supervision orders and a period of foster care due to the mother's mental health deterioration. The Dutch courts have consistently sought to maintain contact between the father and the Child, but the mother has resisted cooperation, including refusing to participate in court-recommended contact arrangements.

The father applied for the Child's return under the Child Abduction and Custody Act 1985. The mother was served in England, and interlocutory hearings took place. The court received extensive evidence from Dutch authorities concerning the Child's history, welfare measures, and plans for care upon return, including the possibility of foster care or kinship placement if the mother refuses to return with the Child.

Legal Issues Presented

1. Whether the mother has established that ordering the summary return of the Child to Holland would expose the Child to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation within the meaning of Article 13(b) of the Hague Convention.
2. Whether the mother's conscious refusal to return with the Child affects the court's assessment of the risk or intolerability under Article 13(b).
3. The extent to which the court can or should compel the mother to return with the Child in the face of her refusal.

Arguments of the Parties

Appellant's Arguments (Father)

• The Child was wrongfully removed from Holland and should be returned under the Convention.
• The only way for the Child to maintain a relationship with the father is to return to Holland.
• Offers undertakings including no prosecution of the mother for removal, payment of travel costs, and non-interference with the mother’s presence in Holland.
• If the mother refuses to return, supports the Child being placed in foster care temporarily pending welfare proceedings.
• Invites the court to compel the mother to return with the Child.

Appellee's Arguments (Mother)

• Opposes return on the basis that it would separate the Child from her, his primary carer, and place him in foster care, constituting a grave risk of harm or intolerability under Article 13(b).
• Alleges past domestic abuse by the father but concedes no incidents since separation and does not rely primarily on this for the Article 13(b) defence.
• Refuses to return with the Child, citing personal reasons including medical and emotional difficulties.
• Argues that the source of the risk or intolerability (her refusal to return) is irrelevant to the Article 13(b) assessment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re E (Children)(Abduction: Custody Appeal) [2011] 2 FLR 758	Clarification of Article 13(b) defence: burden of proof, meaning of "grave risk", "intolerable situation", and importance of protective measures.	Used to define the narrow scope of Article 13(b) and to assess whether the Child faces grave risk or intolerability on return.
C v C (Minor: Abduction: Rights of Custody) [1989] 1 WLR 654	Parent’s refusal to accompany child does not automatically create a defence under Article 13(b); the source of harm is relevant to maintaining the integrity of the Convention.	Quoted extensively to emphasize the importance of not allowing an abducting parent to frustrate the Convention by relying on harm they themselves create.
Re S (Abduction: Return to Care) [1999] 1 FLR 843	Temporary placement in care in the requesting state is not necessarily grounds for opposing return under Article 13(b).	Applied to reject the argument that foster care placement alone constitutes grave risk or intolerability.
Re M (Abduction: Intolerable Situation) [2000] 1 FLR 930	Similar to Re S, assessing the threshold for intolerability in return cases involving care placements.	Supported the court’s assumption that adequate protective measures in the requesting state mitigate risks of harm.
Re S (A Child)(Abduction: Rights of Custody) [2012] 2 FLR 442	Confirmed that the source of grave risk is irrelevant once established; emphasized assessing the mother’s anxieties objectively.	Used to refine the court’s approach to evaluating the source of risk and its relevance to the defence.
S v B and Y [2005] EWHC 733 (Fam)	Rejected an absolute exclusion of the defence under Article 13(b) simply because the abducting parent created the risk.	Supported a nuanced approach focusing on the risk to the child rather than the conduct of the abducting parent.
Re Jones (No 2) [2013] EWHC 2730 (Fam)	Considered the court’s power to compel return and enforce orders under the Convention.	Distinguished on facts; court expressed doubt about compelling a parent to accompany the child but accepted power to enforce return of the child.
B v B [2014] EWHC 1804	Emphasized the purpose of the Convention to secure the return of the child for welfare determination by the home state courts.	Reinforced the principle that return orders are for a limited period pending substantive welfare decisions.

Court's Reasoning and Analysis

The court began by acknowledging the undisputed wrongful removal of the Child from Holland by the mother, characterizing it as a deliberate abduction timed to frustrate Dutch court orders promoting contact with the father. The central legal question was whether the mother had established the Article 13(b) defence that return would expose the Child to a grave risk of harm or intolerability.

The court reviewed the relevant legal principles from the Supreme Court and other authorities, emphasizing that the defence is narrow and requires a grave risk, not merely a real or potential risk. Psychological harm or intolerability must be of a severity that the particular child should not be expected to tolerate.

The court considered the mother’s primary argument that separation from her and placement in foster care in Holland would cause grave risk or intolerability. It accepted the principle of comity that Dutch social services and courts are presumed competent to protect the Child and manage foster care placements appropriately.

Evidence showed that the Child had previously developed well in foster care, and the Dutch authorities had plans to provide protective measures, including family supervision orders and assessments for suitable placement. The court found no compelling evidence that temporary foster care would expose the Child to grave risk or intolerability.

The court addressed the issue of the mother’s conscious refusal to return with the Child, drawing on case law to explain that while the source of risk may be irrelevant once risk is established, it is relevant at the stage of assessing whether the risk exists. The mother’s refusal was a material factor in evaluating the likelihood and nature of any harm or intolerability.

The court rejected the mother’s submission that the source of risk is irrelevant, holding that the mother’s conduct in frustrating the return process is relevant to the assessment but does not automatically exclude the defence if the risk is otherwise established.

Regarding the father’s submission that the court could compel the mother to return with the Child, the court expressed doubt about such power and declined to make any order compelling the mother to accompany the Child, instead leaving the decision to the mother’s discretion.

Overall, the court concluded that the mother had not met the burden to prove that return would expose the Child to a grave risk of harm or place him in an intolerable situation. The level of distress from separation and foster care, given the protective measures, did not meet the high threshold of Article 13(b).

Holding and Implications

The court’s final decision is to ORDER THE RETURN of the Child to Holland pursuant to Article 12 of the Hague Convention.

The direct effect is that the Child must be returned to the jurisdiction of the Dutch courts, which have established jurisdiction and expertise in the Child’s welfare matters. A penal notice will be attached to the return order to enforce compliance. The court acknowledged a short delay to arrange the Child’s reception in Holland, including placement and transport logistics, especially if the mother refuses to accompany the Child.

No new legal precedent is set; the decision reinforces the established narrow scope of Article 13(b) and affirms the principle that wrongful removal cannot be easily excused by harm caused by the abduction itself. The ruling underscores the primacy of the child’s habitual residence jurisdiction in long-term welfare determinations.