Background
The High Court ordered the summary return of a child, MG, to Norway under the 1980 Hague Convention, rejecting the father’s submissions under Article 13(b) that return would expose MG to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation.
The mother is a Norwegian citizen and the father a British citizen. MG was born in Norway towards the end of 2025. Shortly after MG’s birth, the family came to the attention of the Norwegian Children’s Welfare Services (CWS) following concerns raised by a midwife about M’s interaction with MG. CWS investigated the concerns but ultimately assessed the parents as undertaking MG’s care well with some need for guidance. A second CWS investigation arose May 2026. CWS became concerned about M’s mental health and functioning during what was described as a significant life crisis, whilst information was also received that F had threatened suicide. The investigation was ultimately closed because MG was in England, although CWS indicated that it would reopen its involvement if MG returned to Norway.
In May 2026, the family travelled to England to stay with the paternal grandparents. The family intended to return to Norway on 22 June 2026. The parents’ relationship broke down whilst they were in England. M attempted to return to Norway with MG, but F refused to allow MG to leave. M therefore returned to Norway alone. Shortly afterwards, she tragically suffered a stillbirth. F subsequently obtained a prohibited steps order on 16 June 2026 preventing M from removing MG from England and Wales or from his care. He also applied for a British passport for MG. When F and MG did not return to Norway on 22 June as previously agreed, M commenced proceedings under the Hague Convention on 13 July 2026. She also commenced proceedings in Norway seeking sole parental responsibility and an order that MG live with her. It was common ground that MG was habitually resident in Norway immediately before her retention and that F’s retention of her in England was wrongful for the purposes of the Convention.
The Father’s Article 13(b) Position
F resisted MG’s return pursuant to Article 13(b) of the Hague Convention, which provides an exception to the obligation to return a wrongfully removed or retained child where there is a grave risk that return would expose the child to physical or psychological harm or otherwise place them in an intolerable situation. F’s case centred upon the effect that returning to Norway would have upon his mental health and, consequentially, his ability to care for MG. He also relied upon concerns about M’s ability to care for MG independently, particularly in light of the previous involvement of CWS. F accepted that, if the court ordered MG’s return, he would accompany her to Norway.
The court identified the central question as whether the effect of returning to Norway upon F’s mental health was sufficient to establish a grave risk to MG. That required consideration of three matters: the nature of the risk; the likelihood of that risk materialising; and the consequences for MG if it did.
The Law
At [17], the court summarised the applicable Article 13(b) principles. Drawing principally upon Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144, Re A (Children) (Abduction: Article 13(b)) [2021] EWCA Civ 939 and Re B (A Child) (Abduction: Article 13b: Mental Health) [2024] EWCA Civ 1595, the court reiterated that Article 13(b) does not require an artificially narrow construction as its wording is already restrictive. The threshold is intentionally a high one demonstrated by the Convention’s use of the terms “grave” and “intolerable”. The focus must remain upon the risk to the child, rather than merely the effect of return upon the parent.
The burden rested upon F to establish the exception on the balance of probabilities. The court was required to consider both the likelihood of the identified risk occurring and the nature or gravity of the consequences if it did occur. A real risk was insufficient. The risk itself had to attain the level of seriousness properly characterised as “grave” (Re A above).
Psychiatric Evidence
F relied upon expert evidence from Dr McClintock, forensic psychiatrist. Dr McClintock concluded that F’s symptoms were consistent with Emotionally Unstable Personality Disorder (“EUPD”), within the mild-to-moderate range. F’s condition was episodic and particularly liable to become more pronounced in response to stressful life events. Dr McClintock considered that F would continue to experience episodic difficulties with his mood, self-harm and suicidal urges for the foreseeable future. In F’s submission, returning to Norway would be highly stressful and was expected to cause a deterioration in his mental health. Of particular significance, Dr McClintock considered that, at some point, F’s coping mechanisms would probably become overwhelmed to the extent that he would have to relinquish MG’s care to M. However, the expert was unable to quantify either the extent or timing of that deterioration.
Return to Norway and Protective Measures
The court rejected the suggestion that it should itself remove MG from F’s care as part of the return arrangements. Questions concerning with whom MG should ultimately live were primarily matters for the Norwegian courts. As F was willing to return with MG, the judge therefore considered Article 13(b) on the basis that MG would initially return to Norway in F’s care. F was offered £3,200 to enable him to obtain accommodation for approximately two months. The maternal grandparents agreed to provide a further £1,000 towards living expenses, producing a package of 53,000 Norwegian Krona.
Expert immigration evidence indicated that F would more than likely be able to enter Norway with MG and remain there during the Norwegian proceedings. He would have access to legal aid and emergency and necessary healthcare and, in all likelihood, general healthcare. His entitlement to benefits was less certain. Although F did not speak Norwegian and would lose the immediate support presently provided by his parents in England, the judge considered that those difficulties should not be overstated. F had previously been able to communicate effectively with CWS, his parents could continue supporting him remotely, and a support group he attended in England offered online sessions accessible from Norway.
The practical measures proposed by M were an important part of the court’s assessment of the circumstances MG would face upon return. M described the arrangements as a package intended to provide a safe transitional period following return.
Would the Father Become Unable to Care for MG?
The court accepted that there was a significant risk that F’s mental health would deteriorate following his return. However, the judge drew an evidential distinction. While there was a significant risk of deterioration, the evidence of a significant risk of a significant deterioration in his functioning was less clear. Dr McClintock had concluded that F would probably reach a point at which his coping mechanisms became overwhelmed and he could no longer care for MG. The court accepted this as meaning that, on the balance of probabilities, such a point would eventually arise. However, the expert could not identify when that would happen. The absence of any timescale reduced the seriousness of the risk for the purposes of Article 13(b). The judge observed at [33] that the risk would have been more serious had the evidence demonstrated that the deterioration was likely to occur within a short period following return.
Separation from the Father
Next, the court considered what would happen if F did become unable to care for MG. It rejected the argument that separation from F would, by itself, expose MG to a grave risk of harm or an intolerable situation. Although F had become MG’s principal carer following his wrongful retention of her in England, MG had previously been cared for by both parents. M remained a familiar figure to MG and had enjoyed periods of direct and indirect contact. Accordingly, transferring MG from F to M, if ultimately necessary, would not itself cross the Article 13(b) threshold.
The Mother’s Ability to Care for MG
The court considered M’s ability to care for MG independently. The judge acknowledged the evidence was mixed. M had previously provided adequate care for MG, although she had done so jointly with F and had never cared for MG as a single parent. The second CWS investigation raised concerns regarding M’s mental health and functioning. However, the court placed those concerns in their proper context. M had recently experienced both separation from MG and a stillbirth and had been assessed during an acute period of crisis. Her presentation at that time was not necessarily determinative of her ability to care for MG at some future point. Further, M would not be caring for MG without support. She was living with the maternal grandparents, had demonstrated a willingness to seek assistance and had actively engaged with CWS and other services.
The court also emphasised the principle that, absent evidence to the contrary, the English court was entitled to assume that the courts and authorities of the requesting state were as capable of protecting the child as those in England and Wales. Norwegian CWS had been involved with the family and had carefully considered the parenting abilities of both parents. The judge was satisfied that, upon MG’s return, CWS would continue to monitor her circumstances, support the parents, and intervene if necessary to prevent harm.
Decision
The court accepted that returning MG to Norway was not risk-free. The court observed that the matter was complex and considered that a return order, however structured, carried some level of risk.
The court identified two genuine risks: first, that F’s mental health would deteriorate to the extent that he became unable to care for MG; and secondly, that M might struggle to care for MG without support. Nevertheless, neither risk, individually or cumulatively, met the high threshold required by Article 13(b). There was an element of remoteness to both risks. The timescale for any significant deterioration in F’s functioning remained unclear, while the immediate crisis affecting M following her stillbirth and separation from MG was likely to have passed. Most importantly, there was a clear safety net available in Norway through the maternal family, CWS, and the Norwegian courts.
The judge concluded at [38] that these safeguards meant that the consequences for MG, should the identified risks materialise, would be “relatively limited” and did not reach the high threshold required by Article 13(b). Accordingly, F had failed to establish the Article 13(b) exception, and the court ordered MG’s summary return to Norway. The protective measures and “soft landing” provisions were incorporated into the order as undertakings. CWS was also to be notified of the decision before MG’s return and provided with a translated copy of the judgment and relevant documents, including Dr McClintock’s psychiatric report.
This case provides important clarity for cases where a parent’s mental health is evidenced as a reason for a child to not be returned. There is an important distinction in there being a real risk of a parent’s mental health deteriorating and there being a grave risk of harm to the child or otherwise place the child in an intolerable situation – the high bar of the Article 13(b) test.
