The High Court (Family Division) held on 24 February 2026 that a grave risk defence based on wider conditions in South Africa gained no traction, and examined whether a child's objections to return were authentic.
Key facts
- Who: A 14-year-old boy (X), his mother (M) and his father (F), in M's application for X's summary return to South Africa under the Hague Convention 1980.
- From: 24 February 2026 (judgment date)
- Source: X (a Minor) (Hague Convention 1980, Article 13(b); Article 13(2)), Re, [2026] EWHC 400 (Fam)
Mr Justice Hayden gave judgment in the High Court of Justice, Family Division, on 24 February 2026 after a hearing on 16 and 17 February 2026. The case is cited as [2026] EWHC 400 (Fam). The judgment was delivered in private and published on condition that the anonymity of the children and their family is strictly preserved.
Background
X's mother (M) applied for his summary return to South Africa under the Hague Convention 1980. X, who is 14, was joined as a party and had a Guardian appointed. His father (F), previously represented, appeared in person. F defended the application relying on Article 13(b) (grave risk of harm) and Article 13(2) (the child's objections).
The question
Could F make out either defence? The judge said the real focus of the case was the strength and authenticity of X's strongly expressed objections to return.
The decision on grave risk
F's Article 13(b) case rested on the strains South African society currently faces, particularly in policing serious crime. The judge noted that Johannesburg is X's home and that his mother, grandparents, nephews and extended family live there. He did not consider that a defence of grave risk arising from the wider political context gained any traction. He found that F's allegation fell a long way short of the threshold test.
The judge set out the principles in Re IG (Child Abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123. The defence has a high threshold, shown by the words "grave" and "intolerable". The focus is on the risk to the child on return. If allegations would potentially establish a risk, the court must consider whether and how it can be addressed or sufficiently ameliorated, for example through undertakings. F had not indicated the need for, or sought, any protective measures in South Africa. X's school confirmed that a place remains available for him.
X's objections
The judge considered a report from Dr Roux, which concluded that X's "voice" was not authentic and had been seriously influenced by F, and which described an enmeshed relationship between father and son. The judge found abundant evidence that F had embroiled X in the proceedings to an alarming degree. He recognised that X's behaviour towards his mother stemmed from F's malign influence. He met X briefly, at X's request, with X's counsel attending.
What this means for parents in Hague Convention cases
- The Article 13(b) defence has a high threshold, described by the court as turning on "grave" and "intolerable" risk to the child.
- In this case, a defence based on wider social conditions in the country of return did not gain traction, and no protective measures had been sought.
- The court examined the strength and authenticity of the child's objections, including expert evidence on parental influence.
- Anyone facing a Hague application may wish to get legal advice before any hearing or deadline.
Sources
- X (a Minor) (Hague Convention 1980, Article 13(b); Article 13(2)), Re, [2026] EWHC 400 (Fam), High Court (Family Division), 24 February 2026