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The father was of Kurdish heritage. He had lived in Norway for 20 years and had Norwegian citizenship. The mother was of Moroccan heritage and, after moving to the UK in 2010, had acquired British citizenship. She had a daughter from a previous relationship who was 9 at the time of the hearing. 

The parents met in London in 2013. In 2019 the mother moved to Norway to be with the father and in the same year gave birth to a child there. In July 2020, when pregnant with the parent’s second child, the mother took their first child to the UK. She gave birth to their second child there. 

In August 2020, a District Court in Norway granted the father sole parental responsibility for their first child on an interim basis. In September 2020 he made an application pursuant to the 1980 Hague Convention for the return of the child. 

The mother (who believed that the father was in the UK at the time) applied to the Family Court for a non-molestation order against the father. She made detailed allegations of verbal and physical abuse by the father of the mother and some evidence of threats to the children. 

At first instance the Judge decided that the mother had failed to establish the Article 13(1)(b) exception and ordered the return of the child to Norway.

Appeal allowed and case remitted for a further hearing.

Grave Risk - Art. 13(1)(b)

The mother argued that the violence and abuse of the father would put the child at great risk of harm if returned to Norway. She also made clear that she would not return to Norway with the child. 

The first instance Judge held that robust protective measures would appropriately mitigate any objective risk of harm to the child. However, the Court of Appeal did not agree with the Judge’s reasoning.

On appeal, the Court held that the judge had not properly considered the mother’s evidence and failed to make any assumptions about the nature and extent of any risk to the child.

Though the first instance Judge found that there were sufficient protective measures to deal with the risk, this was problematic as the Judge had not clearly identified whether or not he found there to be a grave risk to the child, which is necessary before evaluating the appropriate protective measures. Secondly, the mother had made clear she would not return to Norway and the Judge did not consider what the protective measured would be for the child if returned on his own.