In RA v LA [2026] EWHC 1396 (Fam), the High Court refused a mother's request for oral evidence on her grave risk defence to a father's application to return their one-year-old child to Denmark or Sweden.
Key facts
- Who: Parents involved in 1980 Hague Convention return applications where the Article 13(b) grave risk exception is raised.
- From: 12 June 2026 (judgment date)
- Source: RA v LA (Art 13(b)) [2026] EWHC 1396 (Fam)
Background
The High Court (Family Division), Mr Justice MacDonald, handed down judgment on 12 June 2026 after a hearing on 8 June 2026. The father applied under the Child Abduction and Custody Act 1984 for a return order under the 1980 Hague Convention. The child, M, was born in Sweden and is now aged one.
The mother accepted that M was under 16, that the father had and was exercising rights of custody, that M was habitually resident in Denmark immediately before her removal from Denmark on 10 or 11 January 2026, and that the removal was wrongful under Article 3.
The court granted the mother's application for participation directions under Family Procedure Rules 2010 Part 3A and PD3AA. She sat behind a screen during the hearing and entered court separately from the father.
The questions
The mother relied on Article 13(b). The court had to decide whether there was a grave risk that return to Denmark or Sweden would expose M to physical or psychological harm or otherwise place her in an intolerable situation. If so, it had to decide whether to order return anyway, and whether any return should be to Denmark or Sweden.
The decision on oral evidence
The mother asked the court to hear oral evidence on the impact of past controlling and coercive behaviour, the harm she feared from isolation, lack of language and financial insecurity, the availability of housing and state support, and the effectiveness of protective measures. The father opposed.
The judge refused. Hague proceedings are summary in nature, and a party seeking oral evidence must show it is necessary to resolve the proceedings justly. The judge said it is difficult to think of a case where that will be so when the exception is Article 13(b).
His reasoning was that, where the court cannot confidently discount the possibility that the allegations give rise to an Article 13(b) risk, the proper approach is to take them at their highest and consider whether protective measures can meet the level of risk assumed. On that approach there are no factual disputes to resolve by hearing witnesses.
The protective measures offered
For a return to Sweden, the father offered to pay nursery costs, move out of his Malmo property for up to six months, pay maintenance of SEK 5,000 (about £400) a month for twelve months, pay a rental deposit if the mother did not wish to live in his property, and advance up to SEK 150,000 (about £12,000) of a divorce settlement.
For Denmark, he relied on state support he said the mother could claim and offered a rental deposit, and the same lump-sum advance if she was not entitled to support.
For both countries he offered undertakings, including not to pursue proceedings over the removal, not to attend the airport on arrival, to pay one-way flights, and not to harass or threaten the mother.
Through counsel, the mother confirmed she would return with M if a return order were made to Sweden. Her position was that if a return order were made despite her primary case, it should require return to Denmark.
The legal test
The judgment applies Re E [2012] 1 AC 144. The burden is on the person opposing return, on the balance of probabilities. The risk must be "grave", not merely real, and Article 13(b) need not be narrowly construed.
What this means for parents in Hague cases
The ruling shows how this court dealt with a request for oral evidence on an Article 13(b) defence: it treated the allegations at their highest and looked at whether protective measures could meet the risk. Each case turns on its own facts, and anyone facing a Hague application should get legal advice on their own position.
Sources
- RA v LA (Art 13(b)) [2026] EWHC 1396 (Fam), High Court (Family Division), 12 June 2026: https://caselaw.nationalarchives.gov.uk/ewhc/fam/2026/1396