S (A Child) (Abduction: Article 13(B))

Factual and Procedural Background

The mother appeals an order dated 22 April 2025 by a Deputy High Court Judge on the father's application for a summary return order under the 1980 Hague Child Abduction Convention ("the 1980 Convention"). The judge ordered the return of the parties' child, S, aged 7, to Ireland, finding that the mother had not established the defence under Article 13(b) of the Convention.

It was accepted that the mother had wrongfully removed S from Ireland in June 2024 and would not return due to her mental health. S's sibling, aged 10, remains in England and is not subject to the application for legal reasons.

The mother opposed the father's application relying on Article 13(b), arguing a grave risk of physical or psychological harm to S if returned, and initially on S's objection to return, though the latter was withdrawn during the hearing.

The father commenced proceedings under the 1980 Convention on 23 October 2024. Extensive witness statements were filed. The hearing took place on 15 and 16 April 2025, with oral evidence from a Cafcass Officer and a consultant psychiatrist. The judge gave judgment on 22 April 2025, ordering S's return to Ireland based on undertakings offered by the father.

Permission to appeal was granted on 21 May 2025.

Legal Issues Presented

1. Whether the judge erred in ordering S's return to Ireland despite accepting the mother would not return, thereby placing S with the father amidst serious abuse allegations.
2. Whether the judge improperly relied on the Cafcass Officer’s oral evidence regarding the risk to S without considering the officer’s limited role.
3. Whether the judge impermissibly inserted an 'immediate harm' test into Article 13(b) of the 1980 Convention.
4. Whether the judge failed to consider the mother's Article 13(b) defence holistically and cumulatively, particularly regarding separation from the mother.

Arguments of the Parties

Appellant's Arguments

• The judge wrongly ordered S's return despite serious abuse allegations against the father, which, if true, establish a grave risk under Article 13(b).
• The judge improperly relied on limited oral evidence from the Cafcass Officer, who did not conduct a safeguarding or risk assessment and was not positioned to determine the Article 13(b) defence.
• The judge inserted an impermissible 'immediate harm' test into the Convention's wording, contrary to established case law.
• The judge failed to consider the mother's defence in a holistic and cumulative manner, wrongly treating separation from the mother as a welfare issue outside the scope of Article 13(b).
• The judge did not adequately consider S's vulnerabilities, including his behavioural and sensory issues and his need for emotional security from the mother and sibling.
• The protective measures offered by the father were insufficient to ameliorate the risks identified by the mother.

Respondent's Arguments

• The mother had agreed to unsupervised contact, including overnight stays and proposed S's return to Ireland, undermining her case.
• The judge made a careful and detailed judgment, properly considering all evidence, including the Cafcass Officer's report and oral evidence.
• The alleged harm did not reach the threshold of an intolerable situation under Article 13(b).
• The judge was entitled to rely on the Cafcass Officer's evidence and the protective measures offered by the father.
• The judge correctly considered the foreseeable or immediate future in assessing risk, consistent with the nature of Article 13(b).
• If the appeal succeeds, the matter should be remitted for rehearing rather than decided by the appellate court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144	Framework for assessing grave risk under Article 13(b) and the need to consider protective measures.	The court found the judge failed to properly apply this approach, particularly in assessing cumulative risks and protective measures.
In re S (A Child) (Abduction: Rights of Custody) [2012] 2 AC 257	General process for reasoning about grave risk and protective measures under Article 13(b).	The court reaffirmed the need to consider if allegations, if true, establish grave risk and how risks can be addressed.
In re B (Children) [2023] Fam 77	Importance of cumulative consideration of risk factors under Article 13(b).	The court emphasised the judge's failure to consider risks cumulatively as required.
In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619	Meaning of "intolerable" situation under Article 13(b) and discretion to refuse return.	The court applied the definition of intolerability specifically to the child's circumstances and emphasised the court's discretion.
In re A (Children) (Abduction: Article 13(b)) [2021] 4 WLR 99	Effect of separation from the taking parent can constitute a grave risk under Article 13(b).	The court recognised separation as a relevant factor in assessing grave risk.
In re R (Children) [2025] Fam 67	Separation from primary carer as a factor under Article 13(b).	The court cited this case in support of considering separation within the scope of Article 13(b).

Court's Reasoning and Analysis

The court found the judge's decision materially flawed for several reasons. The judge did not properly apply the approach set out in In re E, failing to assess cumulatively whether the mother's allegations, if true, established a grave risk under Article 13(b). The judge did not address this critical question directly in his judgment.

The judge's reliance on the Cafcass Officer's evidence that there was no "immediate risk" was misplaced. The Cafcass Officer had not conducted a safeguarding or risk assessment and was not positioned to determine the Article 13(b) defence. The court emphasised that the assessment is not limited to immediate risk but includes foreseeable future risks.

The judge discounted S's vulnerabilities and the impact of separation from the mother and sibling, wrongly treating these as welfare issues outside Article 13(b). The court highlighted that separation itself can constitute a grave risk and must be considered.

The protective measures offered by the father were limited and did not address the serious allegations of abuse or the impact of separation on S. The proposed welfare report in Ireland was not an effective protective measure as it would occur only after S's return and separation.

The court concluded that the mother's allegations, if true, establish a grave risk of psychological harm or an intolerable situation for S if returned to Ireland to live with the father. This conclusion was supported by S's particular vulnerabilities, behavioural issues, and need for emotional security from the mother and sibling.

The court further noted that the discretion under Article 13 should not be exercised to order return where grave risk is established, aligning with the principle that the Convention should not be used to expose children to harm.

Holding and Implications

The appeal is allowed and the father's application for a summary return order is dismissed.

The court set aside the earlier order requiring S's return to Ireland, finding that the mother established a grave risk under Article 13(b) of the 1980 Hague Child Abduction Convention. The court determined that returning S to live with the father would expose him to psychological harm or place him in an intolerable situation, considering the serious abuse allegations, S's vulnerabilities, and the impact of separation from his primary carer and sibling.

No new precedent was established beyond the application and reaffirmation of existing case law. The direct effect is that S will not be returned to Ireland pursuant to the father's application under the 1980 Convention.