Hague Abduction and Protective Measures
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Serena Sandhu
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Hague abduction and protective measures: lessons from S v Q
Serena Sandhu represented the mother in the matter of S and Q [2025] EWHC 2381 (Fam). The case involved the father’s application for the summary return of the parties’ two children under the 1980 Hague Convention, following their wrongful retention from Mauritius by the mother in December 2024.
The father registered the wrongful retention with the Mauritian authorities in around January 2025 and commenced Hague proceedings in May 2025.
The mother sought to oppose the application, relying on the defence under Article 13 (b) of the Convention, relating to grave risk of harm or intolerability. She alleged a longstanding pattern of domestic abuse by the father, including physical, verbal, and emotional abuse towards her and the children. She also sought to rely on history of control, financial abuse, and unreliability in financial support.
The factual context
The parents married in Mauritius in 2020. Both are Mauritian nationals, and their children, now aged 4 and 1 were born there. The mother and children later acquired British nationality under legislation that provides a pathway to citizenship for people of Chagossian descent.
The mother and children travelled to England. The father argued that this was intended as a short family holiday until the end of December 2024.
The mother initially filed a statement dated 22 July 2025, asserting that the plan had always been for a more permanent relocation: that she and the children were moving to England for better opportunities, and the father would join later once immigration status was resolved. She said that at no point was the plan to return at the end of December 2024.
However, in her later statement dated 3 September 2025, the mother changed her account: she said that the original plan was indeed a holiday, and only after arriving in England she decided not to return, citing experienced domestic abuse by the father. She claimed she informed the father on 13 December that she would not return.
The father disputed that he never consented to a permanent relocation.
The court did not hear oral evidence and the matter proceeded on the basis of oral submissions.
The court found the mother’s accounts to be irreconcilable and considered that both could not be true. Mr Justice Peel held that it was more likely that the mother intended from the start not to return. He emphasised the absence of return tickets, the plausibility of planning a permanent move (including applying for British nationality), and other motive evidence.
The court carefully considered the disputed allegations of domestic abuse. The mother evidenced photographs of her injuries caused by the father, audio voice messages containing threats and verbal abuse, a withdrawn complaint to the Mauritian police. The father accepted some of his behaviour was inappropriate but denied it reached the high threshold required under Article 13b.
The father offered various protective measures (undertakings and orders) if a return order were made.
The mother, while opposing return, said she would accompany the children and sought a broader range of protections than those offered.
Legal issues
The key legal issues in S v Q were:
- Should the return order be granted under the Hague Convention, or is a defence under Article 13(b) made out?
- How should the court evaluate and weigh the abuse allegations and the risk to the children (if returned)?
- What protective measures must be in place before return, especially given that Mauritius is not a party to the 1996 Hague Convention?
- How should a stay of return be managed pending implementation of protective measures?
Article 13b
Under the 1980 Hague Convention, a return order is generally required unless a defence is made out, including Article 13(b), which allows refusal if returning the child “would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation.”
The leading authority on Article 13(b) defence is Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2011] 2 FLR 758. This case maintained the position that the burden of proof lies with the ‘person, institution or other body’ which opposes the child’s return.
Lord Wilson said in Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 FLR 442, the ‘critical question is what will happen if, with the mother, the child is returned’
When considering the allegations in this case, Mr Justice Peel applied the framework from Re IG [2021] EWCA Civ 1123 and related authorities to determine if the children were at risk of harm. The analysis proceeds in stages:
- Would the allegations, if true, amount to a grave risk or an intolerable situation?
- If so, can protective measures be put in place to mitigate these risks?
- Would such protective measures be effective and enforceable?
Outcome
The court was satisfied that the father did not consent to a permanent removal of the children to England and found that the children were wrongfully retained under the Hague Convention at the end of December 2024.
The court found that the abuse and threats were serious but that there was insufficient evidence to conclude the mother’s mental health was so affected on the return as to make the care of the children compromised to the point of intolerability in the meaning of Re S and related authorities.
On balance, the court was not satisfied that the risk (if returned) would necessarily reach the high threshold of “grave risk” or “intolerability” to the children. The risk of upheaval was real, but that did not by itself justify refusal.
The court also considered the protections available under Mauritian law (domestic violence legislation, child protection statutes, and organisations) and accepted that Mauritius has some existing structure to address abuse.
The court also found that the protective measures offered (some by the father, some additional measures proposed by the mother) could, in principle, mitigate the risks, though with some modifications.
For that reason, the return order was conditional, and the order was to be stayed pending the implantation of specified protective measures that must be recognised and enforceable in Mauritius, including the father:
- Undertaking not to commence criminal proceedings against the mother for child abduction
- Not to contact with the mother except for arranging child contact or emergencies
- Not to use or threaten violence, or harass the mother and children
- Not to attend airport in Mauritius on their return
- Not to remove children from mother’s care without written agreement or court order
- Paying for the children’s return flights to Mauritius
- Providing accommodation, either by vacating the family home for the mother and children to live there or paying for rental accommodation
- Paying child maintenance of £200 per month
- Meeting the children’s education costs, if needed.
The court emphasised that these measures must be in place before return is triggered.
The challenge of protective measures & enforcement
Although the Judge rejected the Article 13b defence, he was clear that the children could only be returned if protective safeguards were in place.
Mauritius is not a signatory to the 1996 Hague Convention, meaning English court orders are not automatically enforceable there. Instead, they must be recognised through a local process known as exequatur. This is a complex and costly procedure, and one that may be beyond the father’s financial means, especially given the ongoing maintenance and accommodation obligations.
As a result, while the order for return was technically granted, the conditions may prove impossible for the father to satisfy. In reality, the children are likely to remain in England, unless there is a major change in the father’s circumstances.
This case highlights how outcomes in international child abduction proceedings are rarely black and white. Although the father “won” in principle, the protective measures imposed by the court may prevent the order from ever being implemented.
For the mother, this represents something of a victory in defeat: the children remain safe with her in England, even though the return order was formally made.
Read the full judgment here.
How can we help?
At Osbornes Law, we understand the complexities of international family law and are committed to providing clear, compassionate, and strategic advice. Whether you’re facing a Hague Convention dispute or seeking guidance on protective measures, our experienced team is here to support you every step of the way. Please contact us by:
- Filling in our online enquiry form; or
- Calling us on 020 7485 8811.
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