Reported Case
Successful Defence in Hague Convention Child Abduction Proceedings Mother and Child Remain in the UK (23 September 2025)
Date: 23/09/2025
Family & Child Care Director, Adeeba Naseem, has successfully defended a mother facing proceedings under the 1980 Hague Convention, securing a ruling that her three-year-old child will remain in the UK.
Background
The case D (A Child), Re (Abduction: Article 13(b)) (Rev1) EWHC 799 (Fam) concerned an application brought by the father for the summary return of his three-year-old child (“D”) to Australia under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
D was born in Australia in early 2022 and holds both British and Australian nationality. The mother, originally from the UK, had lived in Australia since 2016 and acquired Australian citizenship. The father is an Australian national.
The parents’ relationship was marked by disputed allegations of domestic abuse. A significant incident occurred at Christmas in 2023, when the father threw a vacuum cleaner against a door in the presence of the mother and child. Police attended, and a Police Protection Notice was issued, followed by a Domestic Violence Protection Order (DVPO) by consent in February 2024, lasting five years.
In February 2024, after the father moved out of the family home, the mother travelled to the UK with D without the father’s knowledge or written consent. Initially describing the trip as temporary, she later decided to remain permanently. The father issued Hague Convention proceedings in October 2024 seeking D’s immediate return to Australia.
Issues Before the Court
The court had to determine:
- Whether the removal was “wrongful” under Article 3 of the Convention.
- Whether the father had acquiesced to the removal (Article 13(a)).
- Whether there was a grave risk of physical or psychological harm or an intolerable situation if D was returned (Article 13(b)).
- Whether the protective measures offered by the father were sufficient to mitigate any risks.
Arguments
The father argued that the mother’s removal of the child to the UK breached his custody rights under Australian law. He denied the seriousness of the domestic abuse allegations, suggesting they were exaggerated, and proposed various protective measures, including financial support, undertakings not to pursue proceedings against the mother, and compliance with the existing Domestic Violence Protection Order. He maintained that the risks raised by the mother either did not exist or could be effectively managed through these safeguards. The father also challenged parts of the mother’s psychiatric evidence and denied his involvement in alleged incidents of coercive control following her move to the UK.
The mother argued that the father had, through his conduct and communications after the move, effectively acquiesced to her decision to bring the child to the UK. She maintained that returning the child to Australia would create a grave risk of harm or an intolerable situation, citing the history of domestic abuse, the impact on her mental health, the possibility of being separated from the child, and her family circumstances in the UK. Relying on expert psychiatric evidence, she said a forced return would likely cause a serious decline in her mental health, undermining her ability to care for the child.
She further argued that the father’s proposed protective measures were inadequate in light of her vulnerabilities and the ongoing risk of abuse, and she stressed the significance of her own mother’s terminal illness in the UK, which heightened the risk of separation from her child if she were required to return to Australia.
Court’s Decision
The court accepted that the removal was technically wrongful under Article 3, and rejected the acquiescence defence under Article 13(a).
However, on Article 13(b), the court found there was a grave risk of harm or intolerability if D were returned to Australia, based on:
- The history of alleged domestic abuse, which could not be discounted.
- The mother’s diagnosed adjustment disorder and the risk of clinical depression if forced to return.
- The potential separation of mother and child if the mother needed to come back to the UK to care for her terminally ill mother.
- The inadequacy of the father’s protective measures, including the absence of realistic accommodation arrangements and the likelihood of delays in accessing mental health and financial support in Australia.
Weighing these factors cumulatively, the court concluded that the mother had established the Article 13(b) defence.
The father’s application for D’s summary return to Australia was dismissed, and the court exercised its discretion to refuse return. D will remain in the UK with the mother.
Comment
This case highlights the importance of robustly presenting evidence in Hague Convention proceedings, particularly where issues of domestic abuse, mental health, and protective measures are central to the risk assessment.
Adeeba Naseem’s successful representation ensured that the court fully considered the cumulative impact of the risks, safeguarding both mother and child from the harm that a forced return could cause.
About the Author
Adeeba Naseem is a Director of Family and Child Care at Duncan Lewis Solicitors and is recognised as a Next Generation Partner in the Legal 500 UK directory. She specialises in international and domestic family law matters before the High Court, with a niche expertise in child abduction, surrogacy, and adoption cases. Adeeba regularly handles complex cross-jurisdictional disputes, including cases involving countries outside the Hague Convention framework, and advises on divorce, separation and financial proceedings.
For advice on Family and Child Care matters, contact Adeeba via email at AdeebaN@duncanlewis.com or via telephone on 07920077039.
Duncan Lewis Solicitors
The Family and Child Care department is ranked by The Legal 500 and Chambers and Partners for family and matrimonial work, providing confidential advice with effective representation. Our family team includes solicitors who have achieved the Law Society’s Children Law and Family Law Advanced accreditations providing advocacy in all court proceedings, ensuring our clients receive a consistent and professional service as well as a high degree of continuity.