Article 13(b) defence in international child abduction: YM v ML analysis

The High Court's decision in YM v ML, delivered by Mr Nicholas Allen KC on 26 August 2025, provides significant guidance on the application of Article 13(b) of the Hague Convention in international child abduction cases under the Child Abduction and Custody Act 1985.

Case background

The matter concerned the return of two-year-old child A from England to Australia. The applicants, YM and ML, shared parental responsibility for A, who was born in Australia. Following marital difficulties, ML relocated to England with A, leading to deteriorated relations between the parents and allegations of domestic abuse by ML against YM.

ML's primary defence centred on Article 13(b) of the Hague Convention, which permits courts to refuse return orders where there exists a "grave risk" of psychological or physical harm to the child. ML contended that her return to Australia would exacerbate her mental health difficulties due to immigration status uncertainties, consequently affecting A's wellbeing.

Expert evidence and psychiatric assessment

Dr Kolkiewicz, a forensic rehabilitation psychiatrist, provided crucial evidence regarding ML's psychological state. The expert report indicated that ML suffers from chronic depressive disorder, which remains manageable with ongoing treatment. However, Dr Kolkiewicz assessed that returning to Australia under current circumstances would likely cause significant psychological stress for ML, with consequential impact upon A.

The psychiatric evidence highlighted the complex interplay between parental mental health and child welfare in Article 13(b) assessments, demonstrating how adult psychological distress can constitute a pathway to child harm within the Convention's framework.

Protective measures and risk mitigation

YM contested ML's assertions, proposing comprehensive protective measures including funding ML's relocation, providing financial support for living expenses, and implementing shared care arrangements upon return to Australia. The court considered whether such safeguards could adequately mitigate the identified risks to both ML and A.

The judgement emphasised that protective measures must be both practical and effective in addressing the specific risks identified. Mere theoretical availability of support is insufficient; courts require concrete assurance that proposed measures will meaningfully reduce the grave risk threshold.

Article 13(b) threshold analysis

Mr Allen KC's analysis focused on the stringent requirements for establishing "grave risk" under Article 13(b). The judgement clarified that risks must reach a level of seriousness associated with imminent harm—whether psychological or physical—rather than merely being present or theoretical.

The court conducted a comprehensive evaluation of ML's concerns, including domestic abuse allegations, mental health implications, and immigration uncertainties. Despite the cumulative nature of these factors, the judgement determined they did not satisfy the elevated threshold required under Article 13(b).

Judgement and implications

The court ordered A's summary return to Australia, effective six weeks post-judgement, contingent upon adequate protective measures being established. This outcome reinforces the Convention's underlying presumption favouring swift return whilst acknowledging the necessity for meaningful safeguards in appropriate circumstances.

YM v ML demonstrates the courts' careful balancing exercise between the Convention's return presumption and genuine welfare concerns. The decision provides valuable precedent regarding the integration of psychiatric evidence in Article 13(b) assessments and the practical requirements for effective protective measures in international child abduction proceedings.