11 May 2021
Risque grave - art. 13(1)(b)
The parents were born and lived in Morocco. The mother was a Spanish and Portuguese national and the father a French national. The couple married in France in 2013 and had one child, born in 2014 in Morocco.
In November 2018 the mother travelled with the child to Switzerland and then to Portugal and on to New York City, where they have remained ever since.
In October 2019 the father filed an application under the 1980 Hague Convention for the return of the child to Morocco.
The mother argued that to return the child to Morocco would put her at grave risk of harm within the scope of Article 13(1)(b).
The Court refused to order the return of the child.
The parents gave conflicting evidence and both accused the other of abuse. Neither party introduced corroborating evidence of harm from physical violence, such as pictures, medical records, or police reports. The court found the mother’s account to be more credible than that of the father.
Mental health experts found the mother and daughter to be suffering from PTSD due to domestic violence. One expert added that if the child was returned to Morocco her condition would deteriorate and that she would be at grave risk of harm.
The Court found this to be clear and convincing evidence and refused to order the return of the child.
The court also considered possible protective measures in Morocco or undertakings by the father but found that there were no arrangements that could mitigate the grave risk posed to the child.