Summary of Judgment (anonymised)

Factual and Procedural Background

This appeal concerns an application under the Child Abduction and Custody Act 1985 (which implements the Hague Convention on the Civil Aspects of International Child Abduction) brought by the father for the return of three children who were removed in October 2024 from Country A to Country B. The father is the Plaintiff/Appellant; the mother is the Defendant/Respondent. At the time of the hearing the children were aged approximately nine, seven and five years.

The parties are nationals of Country D who left that country some years earlier and lived for periods in Country C before the parents came to Country A and Country B respectively. The Plaintiff/Appellant claims asylum in Country A and has refugee status there; the Defendant/Respondent claims asylum in Country B for herself and the children and was likely to be successful at the time of the hearing.

The Defendant/Respondent admitted that she unlawfully took the children to Country B in October 2024. Proceedings for a return order were issued by the Plaintiff/Appellant on 5 December 2024. At first instance (before Judge Humphreys) the application for a return order was refused on 18 September 2025. The present appeal is against that refusal.

At first instance the respondent accepted (for the purpose of the Convention analysis) that the children were under 16, that they were habitually resident in Country A immediately prior to removal, that the plaintiff was exercising rights of custody at the relevant time, and that less than one year had elapsed between removal and the commencement of proceedings.

The Defendant/Respondent resisted summary return by relying on three exceptions under Article 13 of the Convention: (1) acquiescence (Article 13(1)(a)); (2) grave risk of physical or psychological harm or otherwise intolerable situation (Article 13(1)(b)); and (3) the children's objections to return. The first instance judge found all three exceptions established and refused the return order. The Plaintiff/Appellant now appeals on several discrete grounds.

Legal Issues Presented

1. Whether the first instance judge was wrong to find that the Plaintiff/Appellant had acquiesced in the children's remaining in Country B (Article 13(1)(a)).
2. Whether the first instance judge was wrong to find that the Article 13(1)(b) grave risk exception was established.
3. Whether the undertakings/proposed protective measures offered by the Plaintiff/Appellant were sufficient to negate the grave risk identified by the judge.
4. Whether the first instance judge was wrong to find that the children objected to return and that their objections should be taken into account.
5. Whether the judge erred in refusing to order the return of the children under Article 12 of the Convention.

Arguments of the Parties

Plaintiff/Appellant's Arguments (summarised)

• The judge erred in finding acquiescence: the Plaintiff/Appellant did not consent to or acquiesce in the children's remaining in Country B and any communications relied upon did not amount to a concluded agreement.
• The judge applied an insufficiently high standard when assessing the Article 13(1)(b) grave risk exception; the respondent's allegations were not objectively substantiated and there was limited corroborative evidence.
• The protective undertakings proposed by the Plaintiff/Appellant were adequate in principle and should have been accepted as mitigating measures.
• The judge was wrong to conclude that the children had made a valid objection to return; their views amounted to preference rather than objection and may have been influenced by the Defendant/Respondent.
• On the totality of the evidence, a return order under Article 12 should have been made.

Defendant/Respondent's Arguments (summarised)

• The Defendant/Respondent contended that she and the children had been victims of sustained domestic violence and coercive control by the Plaintiff/Appellant, and that return would expose the children to grave physical and psychological harm or an otherwise intolerable situation.
• She relied on contemporaneous communications and a position paper which, in her account, demonstrated that the parents had reached an agreement in December 2024 allowing the children to remain in Country B.
• She maintained that the children objected to return and that their objections were authentic and appropriate to be taken into account.
• The Defendant/Respondent disputed that the Plaintiff/Appellant's proposed undertakings would be implemented effectively and pointed to his previous conduct and the centrality of accommodation to the protective regime.

Representative for the Children's Interests (summarised)

• The Official Solicitor (representing the children's interests) provided a neutral report based on interviews with the two elder children and expressed grave concern for the children, stating that their disclosures painted a deeply disturbing picture and "may amount to significant harm."
• The Official Solicitor's report was relied upon by the judge as an important evidential source when assessing risk and the authenticity of the children's views.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re E (Children Abduction: Custody Appeal) [2011] UKSC 27	The Convention's summary nature; welfare is a primary consideration but not the court's paramount consideration in Hague proceedings; high-level guidance on Article 13(b).	The court relied on Re E to emphasise that Hague proceedings are summary and that welfare does not become paramount; Re E also provided the legal framework for assessing grave risk.
Re H (Minors) (Abduction: Acquiescence) [1998] AC 172	Leading authority on acquiescence: depends on plaintiff's actual state of mind; contemporaneous words/actions carry weight; only clear and unequivocal words/actions will estop the plaintiff.	The court applied the Re H principles in assessing whether the Plaintiff/Appellant had actually acquiesced, giving particular weight to contemporaneous communications and the draft order communicated to the court.
Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106	Acquiescence is not a continuing state of mind; acceptance, once made known, cannot be withdrawn.	The court cited Re A to support the proposition that an expressed acquiescence, once made known, cannot readily be retracted.
P v P (Abduction: Acquiescence) [1998] 1 FLR 630	Illustrates the distinction between negotiations and a concluded agreement for acquiescence; negotiating stage may not amount to acquiescence.	The court distinguished P v P on the facts, finding that in the present case there was a clearer concluded agreement (email, position paper, draft order) than in P v P.
ZA and BY [2020] NIFam 9	Article 13(1)(b) requires a high level of proof when alleging grave risk; burden lies on the person opposing return.	The court referred to ZA and BY to confirm the high threshold for grave risk and to frame its assessment of whether that threshold was met on the evidence.
F and M (Hague Convention: Grave Risk) [2024] NICA 38	Adopted the legal standard from Re E regarding the grave risk exception.	The court noted that F and M adopts Re E's approach and applied that standard when reviewing the judge's finding on grave risk.
G v D [2020] EWHC 1476 (Fam)	Principle that, absent contrary evidence, the authorities of the requesting State can be expected to provide adequate protection comparable to the requested State.	The court cited G v D when discussing the obligation to consider whether protective measures in the requesting state (Country A) could mitigate any identified grave risk.
Re L [2023] EWHC 140	Illustrates that undertakings which are not implemented (for example accommodation undertakings) may be ineffective and insufficient to avoid the grave risk exception.	The court referenced Re L as analogous authority showing the importance of demonstrable ability to implement protective measures (particularly accommodation).
G and T [2023] EWCA Civ 1415	The Convention should not become an instrument of harm; if effective protective measures are not in place at point of return where grave risk exists, harm may follow (citing Re D).	The court used G and T to support the proposition that return should not be ordered where effective protective measures cannot be guaranteed at the point of return.
Re D [2006] UKHL 51	Authority cited for the proposition that absence of effective protective measures at the point of return can lead to an inference that harm may follow.	The court relied on Re D (as cited in other authorities) to justify scrutiny of protective measures and undertakings when grave risk is alleged.
Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26	Framework for the child's objections defence: threshold/gateway stage and discretion stage; distinction between objection and preference; considerations about authenticity and maturity.	The court applied the Re M framework in assessing whether the children's statements amounted to an objection and whether they had the age and maturity to have their views taken into account.
Re F (Child's Objections) [2015] EWCA Civ 1022	Endorses principles in Re M concerning child's objections and the court's approach to them.	The court cited Re F as supporting authority for the legal approach to children's objections under Article 13.
Re Q and V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490 (Fam)	Summarises principles on child's objections and the approach to the gateway and discretion stages.	The court quoted Re Q and V for a concise statement of how to test objections and the limited threshold for taking a child's views into account.

Court's Reasoning and Analysis

Standard, burden and appellate approach:

• The court restated that Hague Convention proceedings are summary in nature and that the burden of proof lies on the party opposing return (the Defendant/Respondent) to establish an exception on the balance of probabilities. The appellate task is to determine whether the first instance judge was wrong on the evidence.

Acquiescence (Article 13(1)(a)):

• The court reviewed contemporaneous materials which the first instance judge treated as decisive: an email sent to the court on 26 December 2024, a position paper signed by counsel on 23 January 2025 stating the parties had reached consensus, and an accompanying draft order specifying that Country B should have jurisdiction and proposing prohibited steps and passport/port notification measures.
• Applying the established principles from Re H (that acquiescence depends on the plaintiff's actual state of mind and that contemporaneous words/actions carry particular weight), the appellate court concluded that the judge was entitled to find that the Plaintiff/Appellant had engaged in reaching an agreement and had, in effect, acquiesced to the children remaining in Country B.
• The court noted that the Plaintiff/Appellant later changed position in April 2025 but did not act swiftly to pursue summary return thereafter; the court treated that sequence of conduct (including not issuing proceedings in Country A) as reinforcing the finding of acquiescence.
• On this ground the appellate court held that the first instance judge's factual finding of acquiescence was correct and decisive: establishment of any one of the exceptions is sufficient to defeat the return application.

Grave risk (Article 13(1)(b)):

• The court summarised the high threshold for Article 13(1)(b) (as explained in Re E and adopted in local authority cases): the risk must be "grave" and the assessment involves a two-stage exercise—(1) whether the grave risk exists on the facts, and (2) whether protective measures in the requesting State (Country A) or undertakings would adequately mitigate that risk.
• The court accepted that there was a conflict of evidence: the Defendant/Respondent alleged sustained domestic violence, coercive control and sexual violence; the Plaintiff/Appellant denied these allegations and contended the complaints were fabricated.
• The appellate court concluded that there was some independent corroboration: complaints to police in Country C in 2023 and to police in Country B in 2025, the Official Solicitor's report which recorded concerning disclosures by the children and expressed "grave concern," and further contemporaneous WhatsApp material which supported the respondent's account.
• On an overall view, the court was satisfied that the judge was entitled to find that, if the respondent's allegations were true, a grave risk to the children existed.
• Regarding protective measures and undertakings offered by the Plaintiff/Appellant, the court analysed the proposed package (vacating accommodation for four months or sourcing alternative accommodation, financial assistance, travel costs, commencing proceedings in Country A, non-contact undertakings, and contacting the relevant child protection authority). The court observed that accommodation was central and that there was no evidence the Plaintiff/Appellant had taken steps to implement the measures; furthermore, there was no clear liaison to firm up protective measures in Country A. The court therefore concluded there was a missing link in the protective measures analysis and that technically the Article 13(1)(b) exception was not fully established on that basis alone, although the foundational evidence supported a finding of grave risk.

Children's objections (Article 13):

• The court applied the established three-part framework (gateway: genuine objection; age and maturity; discretion) drawn from Re M and related authorities.
• The Official Solicitor's neutral interviews recorded the two elder children's clear aversion to returning to Country A and positive reasons for wanting to remain in Country B (school, friends, local environment). The court considered the children's ages and demeanour and found them sufficiently mature for their views to be taken into account.
• The court rejected the appellant's submission that the responses amounted only to preference or were plainly the product of parental coaching; it accepted that the children's statements were authentic and that their objections were properly taken into account in the discretion stage.

Overall appellate conclusion:

• Although the court noted it might have addressed some parts of the reasoning differently (particularly aspects of the protective measures analysis), it concluded that the first instance judge was not wrong to refuse the return order.
• Crucially, the appellate court considered acquiescence to be a strong and independently determinative defence on the facts of this case; that finding alone sufficed to dismiss the appeal.

Holding and Implications

APPEAL DISMISSED.

Holding (core ruling): The Court of Appeal upheld the first instance judge's refusal to order the summary return of the children under the Convention. The court agreed with the judge that the Defendant/Respondent had established, on the evidence, that the Plaintiff/Appellant had acquiesced in the children's remaining in Country B; for this reason alone the return order was properly refused. The court also upheld, in substance, the judge's findings on the children's objections and on the factual basis for grave risk, while identifying a shortcoming in the first instance analysis concerning the firming-up of protective measures in Country A.

Implications:

• The direct effect is that the return order was refused and the welfare proceedings will proceed in Country B (the requested State where the children currently are). The court directed the parties to issue the appropriate welfare applications and to file position papers promptly so that the child's welfare matters can be determined.
• The court reminded practitioners that Hague Convention cases are summary proceedings that should be dealt with expeditiously and that delays contrary to the Convention's expectations should be avoided.
• The judgment did not purport to create new law; it applied and clarified existing authorities in the context of the facts before the court. The appellate court emphasised the continuing importance of contemporaneous communications when assessing acquiescence, the high threshold for Article 13(1)(b), and the established gateway/discretion framework for children's objections.

Note: All parties, judges and locations in this summary have been anonymised in accordance with the instruction accompanying the source judgment to protect the identity of the children and the family concerned.