Summary Return Despite Article 13(b) Concerns: YM v ML [2025] EWHC 2219 (Fam)
Harpreet Heer from our Family Team in Birmingham reviews the High Court’s decision in YM v ML [2025] EWHC 219 (Fam). The Court considered whether a child should be returned to Australia under the Hague Convention despite arguments that doing so would place the child in an intolerable situation. Harpreet discusses the high threshold under Article 13(b) and the crucial role protective measures play in such disputes and highlights how the expert evidence in this case tipped the balance in favour of summary return of the child.
Background
The parents who are British nationals, moved to Australia on a temporary visa. They had a child together, who was born in Australia. The parents ended their relationship and travelled to England on a pre brooked holiday following which, the father returned to Australia and the mother, having cancelled her flight, remained in England with the child.
The Court was concerned with an application by the father for the return of the child to Australia under the Child Abduction and Custody Act 1985 and the Hague Convention 1980.
This was opposed by the mother who relied on the principles set out in Article 13(b) of the Hague Convention that the child would be exposed to a ‘grave risk of harm’ or ‘intolerable situation’ if the child was returned, for the following reasons:
- The mother alleged that there had been coercive and controlling behaviour from the father towards her and the threat of domestic abuse would create an intolerable situation.
- The mother suffered with chronic depression and suggested that returning to Australia would impact her mental health and consequently, her ability to care for the child.
- The family’s visa was granted on the basis that the parents were considered to be in a ‘de facto’ relationship. As their relationship had come to an end, the mother argued there was a risk the visa would be cancelled therefore leaving the child without a primary carer.
The Court’s Analysis
Domestic abuse allegations
The Court carefully considered the mother’s claims of coercive control. The judge concluded that viewed through the lens of Article 13(b) they did not establish a grave risk of harm to the child. This was particularly because protective measures could be put in place in Australia to manage risks.
Maternal mental health
The Court accepted there is a risk to the mother’s mental health given that a return to Australia would act as an additional stressor for her. However, the Court heard expert evidence to suggest that the mother’s condition could be partially managed and mitigated by having a stable accommodation for herself and the child, access to GP and prescribed medication, counselling and psychological support, having clear boundaries about contact between the father and the child and having access to support from the local nursery, family and friends. The father had offered undertakings to provide housing, medical and financial support. The judge was satisfied these measures reduced the risk below the ‘grave’ threshold required by Article 13(b).
Immigration concerns
In regard to the mother’s uncertain immigration status, the Court heard expert evidence confirming both the mother and child currently held valid visas until April 2029, and there was no suggestion that the authorities were aware of the breakup, that the parents were being questioned, and the Visa would be cancelled. The Court was also mindful that any decision by the authorities could reasonably be appealed and therefore the family’s status was secure enough to enable welfare decisions to be made by the Australian Courts.
The Decision
The Court ordered the summary return of the child to Australia. and determined that the mother’s concerns, although serious, could be mitigated by various protective measures and therefore taken at their highest, are not within the scope of Article 13(b).
Key Takeaways
This case highlights the high threshold for meeting the Article 13(b) threshold. We can see that the risk of intolerable circumstances, however serious, will not meet the legal test and parents will need to demonstrate a real likelihood of intolerability for the child. In addition, protective measures played a crucial role in the Court’s analysis and determination. This demonstrates the need for creative thinking and expert advice when considering return cases with international elements.
Final Thoughts
This case highlights the tough balancing act in Hague return cases. The High Court reaffirmed the high threshold for resisting return under the Hague Convention.
At GT Stewart Solicitors, our Family Law team are committed to navigating complex children cases with care and expertise.
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