Case Law Search

The parents married in 2013 and had a child, K. The defendant is the biological mother of the child and the plaintiff is recognised as a parent on the birth certificate. The plaintiff is a Dutch national, the defendant from Northern Ireland. The relationship between the parents was characterised by domestic violence and both women accepted they had problems fuelled by alcohol and cannabis use. The plaintiff was convicted of an assault on the defendant in early 2017.

They lived together in the Netherlands until 1 January 2020 when they finally separated. After their separation the child lived with the defendant and the plaintiff had regular contact.

In March 2020 the defendant moved to Northern Ireland with the child, without informing the plaintiff. The child was aged 5 at the time.

The plaintiff sought the return of the child but the defendant argued that this would expose the child to physical or physiological harm or otherwise place him in an intolerable situation.

The judge ordered the return of the child but stated that the order would not take effect until protective measures had been put in place in the Netherlands.

Grave Risk - Art. 13(1)(b)

The judge found that the evidence showed the type of behaviour that did reach the high threshold required and amounted to a grave risk of, if not physical harm, psychological harm and an intolerable situation.

The case came down to the protective measures which were available to guard against the risk. The judge cited Article 11(4) of Brussels IIa Regulation which prohibits refusal of return if protective measures can be put in place in the receiving State. The judge noted that there were a range of protective measures available and had requested further information from the Dutch Central Authority to confirm this.

The judge also engaged in judicial liaison with the Dutch Hague Network Judge to ensure that the court proceedings in the Netherlands would progress as smoothly as possible. Given the circumstances of the case the judge held that the protective measures must actually be in place in the receiving country prior to and upon return.

Procedural Matters

Regarding the effect of the Covid-19 pandemic, the judge applied the principles underpinning the Convention first and then considered practical arrangements. In this case the practical issues were resolved and the travel plans were agreed.