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C v B [2021] EWHC 1369

The case concerned an application by a father for return of two children to Spain under the 1980 Hague Convention.


The parties agreed that there had been wrongful removal pursuant to Article 12, but the mother sought to argue that the grave harm exception in Article 13(b) applied and that the judge should exercise his discretion and decline to make an order. The mother relied on the following:

a. exposure to the father's continuing domestic abuse and controlling/coercive behaviour;

b. a lack of meaningful financial support from the father;

c. vulnerable accommodation on a return to Lanzarote, given the arrears of rent on the family apartment, and no real prospect of being able to fund accommodation for herself and the children;

d. the risk that she will be arrested and separated from the children

The case was dealt with on submissions with statements from the parties. No oral evidence was given and therefore any findings were necessarily extremely limited.

The court found that the mother had failed to reach the high hurdle required to prove an Article 13(b) exception. The judge accepted several safeguards offered by the father, including that he pay for return flights [paragraph 43]. The judge did however indicate that he found the situation in which the mother and children would be placed upon return 'unsatisfactory', but did not find that it reached the threshold of 'intolerable' or that the mother or children would face a 'grave' risk.

Cobb J did however delay the making of the order until after a hearing fixed on 7th July 2021 where the Spanish court would consider the issue of custody. Despite acknowledging the summary nature of such proceedings, the benefits of delay in allowing the father to take some of the actions he put forward as safeguards, to allow the mother to build up a small amount more in benefits, and the fact that the Spanish court would be looking at the welfare of the children and their best interests (in a way a court does not do under Hague Convention proceedings), led the judge to conclude that a delay of a few weeks was appropriate. He listed a hearing shortly after the Spanish hearing to further consider the return order.

Case summary by Rebecca Davies, Barrister, Field Court Chambers

For full case, please see BAILII