Jurisdiction(s):
United Kingdom

Re HR: considering Article 13(b) ‘intolerable situation’ scope, children’s objections, and guidance on parallel 1980 Hague Convention child abduction and asylum proceedings (England and Wales)

Published on: 05 August 2024

Published by a LexisNexis Family expert

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Article summary

Re HR (Parallel Child Abduction and Asylum Proceedings) [2024] EWHC 1626 (Fam) What are the practical implications of this case?

This judgment examined the ambit of the ‘situation’ the court must consider under Art 13(b) of the 1980 Hage Convention. On the question of whether the children would encounter an intolerable situation, the father submitted that the court should look at circumstances in both the UK and the US, whereas counsel for the mother contended that the enquiry must be confined to the home state. The court decided it was unnecessary to determine that issue at this stage and therefore expressly refrained from doing so. Nonetheless, Sir Andrew McFarlane P observed that it is striking there is no extant authority addressing the point. The court further noted that the express focus of Art 13(b) is the potential risk to which a child would be exposed upon return, rather than a broader appraisal. It remains well established that, when applying Art 13(b), the court is not conducting a welfare evaluation but assessing exposure to risk on return, and nothing more. As a result, the judicial lens remains tightly fixed on return-based risk...

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