Background
MG, a very young child habitually resident in Norway, travelled to England with both parents for a temporary visit. After the parents’ relationship broke down, the mother returned alone to Norway. The father retained MG in England beyond the agreed return date. It was accepted that this was a wrongful retention under the 1980 Hague Convention and breached the mother’s rights of custody.
The mother applied for MG’s summary return. The father relied on the Article 13(b) exception, contending that a return to Norway would cause his mental health to deteriorate to the point that he could no longer care for MG. He also relied on concerns raised by Norwegian Child Welfare Services (CWS) about the mother’s capacity to care for MG alone.
The Court’s Holding
Mr David Rees KC, sitting as a Deputy High Court judge, held that the father had not established the high threshold required by Article 13(b): a grave risk that MG’s return would expose her to physical or psychological harm, or otherwise place her in an intolerable situation. The court ordered MG’s summary return to Norway.
The psychiatric evidence supported a risk that the father’s emotionally unstable personality disorder would worsen under the stress of a return, and that at some unidentified future point he might be unable to care for MG. But the expert could not quantify the likely deterioration in the father’s functioning or identify a timescale. Separation from the father would not itself create a grave risk, and the evidence did not show that the mother, supported by her parents and Norwegian services, could not safely care for MG.
The court found that Norway provided an adequate protective framework. The father could enter and likely remain in Norway while child proceedings were determined, would have access to legal aid and healthcare, and would receive funds for short-term accommodation and living expenses. CWS was already engaged with the family and was to be notified before MG’s return, with a translation of the judgment and relevant evidence.
Key Takeaways
- A risk of deterioration in a parent’s mental health is not, without more, a significant risk of deterioration in parenting functioning sufficient to satisfy Article 13(b).
- The Article 13(b) assessment is forward-looking and includes protective measures available in the child’s state of habitual residence.
- Possible future transfer of care from one parent to another will not necessarily amount to grave psychological harm or an intolerable situation.
Why It Matters
The decision applies the Court of Appeal’s approach in mental-health-based Article 13(b) cases: the court must assess the likelihood, gravity and consequences of the asserted risk to the child, rather than treating a parent’s diagnosis or anticipated distress as determinative.
It also illustrates the weight given to practical “soft landing” measures and to the ability of foreign child-protection authorities to safeguard a returning child, absent evidence that those authorities cannot do so.