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The mother and father married in 2009 and had a child. The parents and child were all Polish nationals and they lived together in Poland. The mother petitioned for divorce in Poland in October 2019.

The mother and child travelled to England in September 2020 without the knowledge or consent of the father. In October 2020 the father brought an application under the 1980 Hague Convention for the return of the child to Poland. 

The mother argued that returning to Poland would place the child at grave risk of physical or psychological ham to the child, within the meaning of Article 13(1)(b), due to verbal and physical abuse from the father and also that the child objected to the return. 

The first instance Judge refused to order the return of the child based on Article 13(1)(b). 

The father appealed the decision. 

Decision set aside and matter remitted for rehearing. 

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

The Court of Appeal found that the first instance Judge did not “look at the future” and evaluate the nature or gravity of the risk to the child arising from a return to Poland. Article 13(1)(b) is forward-looking and the critical question was what would happen if, with the mother, the child is returned. On this point the Court referred to paragraphs 35-37 of the Guide to Good Practice: Part VI, Article 13(1)(b).

The first instance Judge also failed to analyse the child’s circumstances were she to return to Poland and whether the risk to her would be “grave”, within the meaning of article 13(1)(b).

It is not the “magnitude” of the alleged abuse nor the “seriousness of the allegations taken at their highest” which, by themselves, establish the required grave risk. The Court must look to the situation as it would be if the child was returned.

The Court also referred to paragraph 39 of the Guide to Good Practice: Part VI, Article 13(1)(b), specifically, that the protective measures considered should include both those “offered” by the parent and also availability of measures by the authorities of the requesting State.