D v M & Anor - Hague Convention Child Return Application (Art 13(b) Murder Defense)

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  D v M & Anor (Art 13(b) Alleged Murder of Parent) [2026] EWHC 731 (Fam) (01 April 2026)

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[2026] EWHC 731 (Fam) | | |
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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
| | | Neutral Citation Number: [2026] EWHC 731 (Fam) |
| | | Case No: FD25P00270 |
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 01/04/2026 |
B e f o r e :

MR JUSTICE MACDONALD

Between:
| | D | Applicant |
| | - and - | |
| | M | First Respondent |
| | -and- | |
| | S | Second Respondent |

**Ms Martha Gray (instructed by Williscroft & Co) for the Applicant
Ms Geraldine More O'Ferrall and Mr Harjot Singh (instructed by Twinwood Law Practice) for the First Respondent
Ms Eva Holland (of Cafcass Legal) for the Second Respondent

Hearing date: 26 March 2026**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 10.30am on 1 April 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
12. MR JUSTICE MACDONALD
17. Mr Justice MacDonald:
19. INTRODUCTION
20. D (hereafter "the father") applies under the Child Abduction and Custody Act 1984 for a return order under the 1980 Hague Convention in respect of S, born in 2018 and now aged 7 years old. S has been joined as a party to these proceedings. The application is resisted by S's maternal grandmother, M, with whom S currently resides in this jurisdiction. The father is represented by Ms Martha Gray of counsel. The maternal grandmother is represented by Ms Geraldine More O'Ferrall of counsel and Mr Harjot Singh, solicitor advocate. S is represented through his Children's Guardian by Ms Eva Holland, solicitor. S's mother (hereafter "the mother"), J, is deceased, in circumstances I shall come to.
22. With respect to the criteria for the making of a return order under the 1980 Hague Convention, the maternal grandmother accepts the following matters:
24. i) S is under the age of 16 years.
25. ii) Immediately before S's retention he was habitually resident in the jurisdiction of the United States of America.
26. iii) Immediately before S's retention the father had rights of custody in respect of S and was exercising those rights of custody.
27. iv) In the circumstances, the retention by the maternal grandmother of S was wrongful for the purposes of Art 3 of the 1980 Hague Convention.
28. During the course of the hearing, there was some debate regarding the date of wrongful retention in this case. That issue arises as a function of the particularly distressing circumstances of this case. The father's case is that the maternal grandmother wrongfully retained S either from 21 or 22 February 2024, being the point at which, on the father's case, he was due to return from India to the United States with his mother, or on 22 October 2024, being the date the maternal grandmother and the maternal aunt took S from the jurisdiction of India to the jurisdiction of England and Wales. The maternal grandmother's case is that the father never intended the mother to return with S to the United States of America, in circumstances where he had conspired with his parents to murder the mother in India, a conspiracy that was brought to its violent conclusion on 19 or 20 January 2024 when the mother was killed at the home of the paternal grandparents in India, in the presence of S.
30. The father has produced no evidence to support his contention that S and his mother were due to return to the jurisdiction of the United States on 21 or 22 February 2024. It can be established, however, that on 22 October 2024 the maternal grandmother and the maternal aunt took S from the jurisdiction of India to the jurisdiction of England and Wales and have retained S in this jurisdiction since that date. At the point the maternal grandmother and the maternal aunt removed S from India, S remained habitually resident in the United States. It is further clear that by that point the Indian court had, on 9 August 2024, refused an application by the maternal grandmother for custody of S and that the father had, on 18 September 2024, issued an application for a search and recovery order in respect of S in the exercise of his rights of custody. No party disputes that the father did not consent to S's being taken to the jurisdiction of England and Wales on 22 October 2024. For the purposes of determining the father's application, I am accordingly satisfied that the date of wrongful retention in this case should be treated as being 22 October 2024.
32. In the foregoing circumstances, the issues the court is required to determine under the 1980 Hague Convention centre on those exceptions to the making of a return order that are relied on by the maternal grandmother. Namely:
34. i) There is a grave risk that S's return to the jurisdiction of the United States would expose him to physical or psychological harm or otherwise place him in an intolerable situation pursuant to Art 13(b) of the 1980 Hague Convention.
35. ii) The proceedings having been commenced after the expiration of the period of one year from the date of wrongful retention, S is now settled in his new environment for the purposes of Art 12 of the 1980 Hague Convention.
36. In determining the father's application, I have had the benefit of a court bundle, including the analysis of the Children's Guardian, a bundle of documents from criminal proceedings in India and copies of the Child in Need meetings held by the local authority in this jurisdiction with respect to S.
38. BACKGROUND
39. S was born in 2018 in the United States. His mother was a US Citizen. The father is an Indian national.
41. The father had contended that his immigration status in the United States derives from an as yet undetermined asylum claim, which was made in January 2014. A letter from the father's immigration attorney stated that the father is in the United States pending the determination of his asylum claim by the US immigration authorities and that the father had a reasonable basis for his asylum claim. However, that letter was unsigned and bore no letterhead.
43. In his statement dated 23 March 2026, and having stated as late as December 2025 that his asylum claim was pending, the father changed his account to state that his asylum claim was closed in 2023 and that he has applied for status under the I-360 Petition process as a widower. That Petition was submitted on 15 January 2025. The petition does not appear itself to confer any immigration status on the father. In the circumstances, it would appear that the prior basis for the father's lawful presence in the United States, namely his asylum application, has ceased and that he is now in that jurisdiction subject to the determination of a different application based on his widower status that does not confer on him immigration status pending its determination. In any event, the reason for his widower status is one in which the father is currently himself implicated by evidence in the possession of the Indian police to which I shall come below.
45. The maternal grandmother alleges that shortly after S was born the father began exerting pressure on the mother to transfer the family home, which was in her sole name, into his name. Thereafter, in January 2022, the maternal grandmother alleges that an incident occurred at a paternal family wedding in India, during which the father and the father's parents were socially humiliated, for which they blamed the mother. The police documents from India also record the maternal grandmother relaying this incident to the Indian police.
47. In January 2024, the mother and S travelled from the USA to what the father told the mother was another paternal family wedding in India. The maternal grandmother contends that the mother was pressured to attend the wedding on the pretext that it would "maintain peace" and placate the paternal grandparents. The father remained in the USA, claiming purported travel restrictions imposed by his immigration status in that jurisdiction. The documents in the bundle indicate that, following the mother's death, the Indian police could find no evidence of a paternal family wedding having been planned or having taken place.
49. The mother died during the night of 19 and 20 January 2024 at the home of the paternal grandparents. The maternal family was informed by the paternal family initially that the mother had died as the result of a heart attack, although later this account changed to her having died as the result of a faulty gas heater.
51. On 24 January 2024 a post mortem was carried out on the mother. The post mortem report is contained in the court bundle. That report contains the following relevant conclusions:
53. i) The mother's body exhibited external injuries including contusion around the right eye; scratch abrasions at the inner canthus of the right eye extending to the nasal bridge; multiple scratch abrasions on the anterior, left lateral and right lateral aspects of the neck; and a contusion over the upper and lower lip.
54. ii) The injuries identified on the mother's body during the post mortem occurred ante mortem.
55. iii) The cause of death was certified as asphyxia by smothering.
56. iv) Samples were taken for further DNA, histopathological and toxicological analysis.
57. The maternal grandmother travelled to India on 23 January 2024. On 27 January 2024, the maternal grandmother made a complaint to the Indian police. Thereafter, the Indian police arrested the paternal grandparents on suspicion of the murder of the mother under Sections 302, 120-B and 34 of the Indian Penal Code. With the assistance of the Indian police, the maternal grandmother collected S from the care of the paternal family and assumed his care in India.
59. On 30 January 2024, each of the paternal grandparents provided statements to the Indian Police. Each statement provided an account which:
61. i) Directly implicated the father as the principal conspirator in the killing of the mother, the father being said by his parents to have instructed them to kill the mother.
62. ii) Identified the method of killing as assault and strangulation followed by smothering, carried out in the home of the paternal grandparents.
63. iii) Identified the motive for the killing as financial in nature as a means of improving the father's immigration position in the United States by providing him access to funds from a life insurance policy (the father exhibits to his statement a life insurance policy in the mother's name in the sum of $100K).
64. iv) Stated that the death of the mother was staged to appear as a death due to gas inhalation.
65. The documents from the criminal investigation in India suggest the police also retrieved a number of items mentioned by the paternal grandparents in their accounts of the mother's murder, including items of blood stained clothing and blood stained bed clothes, evidencing the struggle and assault prior to the mother's strangulation and smothering.
67. The father contends that the statements provided by the paternal grandparents in which they confess to murdering the mother at the behest of the father have been forged by the Indian police. The father denies any involvement in the death of the mother and denies instructing his parents to kill the mother. The father does, however, acknowledge that the post mortem carried out on the mother indicates that she died from asphyxiation as the result of smothering and had sustained other injuries.
69. Following statements being taken from the paternal grandparents, the Indian Police filed a formal charge sheet (the equivalent of an indictment) before the Indian court. The criminal proceedings against the paternal grandparents and the father remain active. The paternal grandparents remain in custody and no trial date has yet been fixed.
71. The charge sheet recently provided to this court describes the father as "yet to be arrested". A "lookout circular" states the arrest of the father is "pending". Both documents strongly suggests that the father continues to be sought by the Indian police in connection with the death of the mother. It is not clear from the documents currently before the court whether any steps have been taken to extradite the father from the jurisdiction of the United States to the jurisdiction of India.
73. The maternal grandmother contends that the evidence before this court indicates that S witnessed his mother being killed in the paternal grandparents' property. The maternal grandmother relies on S telling the ELSA worker at school that he "saw what happened to his mum", that he had hidden under the bed, that "daddy killed mummy" and "daddy was sneaky". When the Children's Guardian spoke to S, he said he did not see his father "because he killed my mum". S has been reported to have nightmares, to feel "sad" and "nervous" and to have expressed a wish to change his name from "D" to "M".
75. On 8 February 2024, the maternal grandmother signed an affidavit confirming her intention to assist in the return of S to his father in the United States if there was an order for him to be returned. The maternal grandmother cared for S in India until May 2024, when the need to protect her employment in this jurisdiction compelled her return. S was left in the care of extended family in India.
77. From February 2024 a maternal aunt, entered into correspondence with the American Citizen Services Unit of the US Embassy and requested assistance in securing custody of S, preventing his removal from India by any person acting on the father's behalf and facilitating the child's travel to the jurisdiction of England and Wales with his maternal grandparents. The court has at this hearing admitted a statement from the maternal aunt detailing her exchanges with the US Embassy and exhibiting the relevant email exchanges. In late October the maternal aunt and maternal grandmother travelled to India, collected S and returned to the jurisdiction of England and Wales.
79. S was removed by the maternal grandmother and the maternal aunt from the jurisdiction of India with the knowledge and the assistance of the US Embassy, which issued a new passport for S and the letter required for the necessary Exit Permit Application to be processed for S by the Indian authorities. An Exit Permit was granted by the Indian FRRO on 16 October 2024. The US Embassy was notified of the travel plans for S prior to his departure to the United Kingdom. S arrived in the United Kingdom on 22 October 2024. On the same date the Home Office notified Children's Services of S's arrival and he was made the subject of a Child in Need plan pursuant to s.17 of the Children Act 1989. On 7 February 2025 the father secured an order from the Indian court declaring him the natural guardian of S.
81. The Father claims that he only became aware that S was in the United Kingdom when notified of an application for a Special Guardianship Order made by the maternal grandmother in the family court. However, in its judgment of 7 February 2025, the Indian court refers to the maternal grandmother having a British passport. The court could only have obtained that information from the father. Thereafter, the father delayed issuing proceedings under the 1980 Hague Convention until 31 October 2025.
83. Whilst in this jurisdiction S has continued to receive extensive support from the authorities. He received support from the local authority as a child in need for 12 months following his arrival in this jurisdiction. Whilst he is no longer the subject of a Child in Need plan, he continues to receive support from the local authority. S also receives support at school, from which he benefits and with which the Children's Guardian notes that he is becoming more comfortable. The Children's Guardian further notes that given the nature and scale of S's loss, and the evidence that he witnessed the killing of his mother, S will need specialist therapeutic support to assist him to process the trauma he has experienced.
85. In her report, the Children's Guardian states as follows with respect to the question of whether returning S to the United States presents a grave risk of harm:
87. "It is my view that, if it is the case that [the father] instructed his parents to murder [the mother] and is directly involved in intra-familial homicide, then this would be indicative of domestic abuse at its highest. In such circumstances I would be extremely concerned about S returning to his father's care in the USA and the only safe scenario I could envisage would be for S to be cared for outside of the home in foster care or a similar arrangement pending a full welfare determination by the US authorities."
88. On behalf of the father, Ms Gray properly conceded that there is no evidence before the court concerning protective measures that can be put in place ahead of a return order being made in respect of S. In her Position Statement, Ms Gray set outs what the father proposes in this regard:
90. i) S would be collected from the jurisdiction of England and Wales by the father's sister.
91. ii) Immediate safeguarding arrangements would be made on S's arrival in the United States through notification to, and engagement with, the relevant child protection agency, with S to be received into their care on arrival and assessed.
92. iii) The father to provide to the US child protection agency and court full disclosure of all material filed in these proceedings, including the Guardian's report and documentation relating to the allegations concerning the mother's death.
93. iv) S to be placed in an interim protective placement pending determination by the US court, to include kinship care (paternal cousins being available and willing to care for S in the US) or, if necessary, foster care.
94. v) There will be no unsupervised contact between S and the father pending further order; any contact to be supervised and/or as directed by the US authorities.
95. vi) The father will undertake (a) not to make or pursue any application for the criminal prosecution of the maternal grandmother arising from S's retention, (b) not to seek to remove S from the jurisdiction of the United States, (c) to comply with all directions of the United States authorities and (d) not to have unsupervised contact unless permitted.
96. vii) The father will immediately engage in welfare/custody proceedings in the United States to determine S's longer-term arrangements.
97. viii) The father will make contact with relevant agencies for appropriate therapeutic or psychological support for S upon return.
98. ix) The father will seek to obtain mirror orders in the US reflecting the undertakings and protective arrangements.
99. It is important to note that none of these protective measures appeared in the father's evidence, but rather are proposed only in Ms Gray's Position Statement. It is further important to note that none of these measures have yet been investigated and, in the circumstances, there is no evidence before the court as to how, or whether they can, be put in place, the identity of the agencies concerned or the timescales for doing so. Given the uncertainties with the father's immigration status, it is also not clear to what extent the father is currently entitled to access services in the United States, the Children's Guardian pointing out that there is very little evidence of him having done so to date.
101. In circumstances where I am satisfied that the court's conclusions in respect of Art 13(b) of the 1980 Hague Convention are determinative in this case, I do not set out here additional background matters relevant to the question of settlement under Art 12.
103. RELEVANT LAW
104. Art 13(b) Harm
105. The proper approach to Art 13(b) and the question of grave risk of exposure to physical or psychological harm or otherwise place the child in an intolerable situation is set out in Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144. The applicable principles may be summarised as follows:
107. i) There is no need for Art 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of Art 13 are quite plain and need no further elaboration or gloss.
108. ii) The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process.
109. iii) The risk to the child must be 'grave'. It is not enough for the risk to be 'real'. It must have reached such a level of seriousness that it can be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two.
110. iv) The words 'physical or psychological harm' are not qualified but do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation'. 'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'.
111. v) Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. Where the risk is serious enough the court will be concerned not only with the child's immediate future because the need for protection may persist.
112. Whilst the evaluation of Art 13(b) proceeds on the assumption that the allegations made by the respondent are true, as made clear by Moylan LJ in Re C (Children) (Abduction Article 13(b)) [2018] EWCA Civ 2834, the approach in Re E does not mean that there is no assessment of the credibility or substance of the allegations. In Re A (Children) (Abduction: Article 13(b)) [2021] EWCA Civ 939, [2021] 4 WLR 99 Moylan LJ articulated the position by reference to the Guide to Good Practice under Art 13(b). Having quoted the judgment of Baroness Hale in Re E, Moylan LJ observed in Re A (Children) (Abduction: Article 13(b)) that:
114. "[92] This does not mean, as I said in In re C, at para 39, that it was being "suggested that no evaluative assessment of the allegations could or should be undertaken by the court". In support of this conclusion, I quoted what Black LJ (as she then was) had said in In re K (A Child) (Abduction: Child's Objections) [2015] EWCA Civ 720 at [53], about the In re E approach: "I do not accept that a judge is bound to take this approach if the evidence before the court enables him or her confidently to discount the possibility that the allegations give rise to an article 13b risk." I would emphasise that Black LJ was referring to discounting the possibility that the allegations would give rise to an article 13(b) risk. She was not otherwise diverging from the approach set out in In re E. It is also plain that she was referring to the end of the spectrum, namely when the court was able confidently to discount the possibility that the allegations gave rise to an article 13(b) risk. This is not to dance on pins but is a distinction of substance derived from the court not being in a position to determine the truth of the allegations relied on as establishing the article 13(b) risk.
115. [93] It was for this reason that, in re C at para 39, I commented that "a judge has to be careful when conducting a paper evaluation" of the evidence. The court has to be careful for the reason given by the Supreme Court, at para 36, namely "the inability of the court to resolve factual disputes". This creates the "tension" there identified between this inability and "the risks that the child will face if the allegations are in fact true". This led the Supreme Court to adopt the "pragmatic and sensible solution" set out above. In its concluding paragraphs in In re E, the Supreme Court repeated, at para 52:
116. "Where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is bound to be on the sufficiency of any protective measures which can be put in place to reduce the risk. The clearer the need for protection, the more effective the measures will have to be."
117. [94] In the Guide to Good Practice, at para 40, it is suggested that the court should first "consider whether the assertions are of such a nature and of sufficient detail and substance, that they could constitute a grave risk" before then determining, if they could, whether the grave risk exception is established by reference to all circumstances of the case. In analysing whether the allegations are of sufficient detail and substance, the judge will have to consider whether, to adopt what Black LJ said in In re K, "the evidence before the court enables him or her confidently to discount the possibility that the allegations give rise to an article 13(b) risk". In making this determination, and to explain what I meant in In re C, I would endorse what MacDonald J said in Uhd v McKay [2019] EWHC 1239 (Fam), [2019] 2 FLR 1159, para 7, namely that "the assumptions made by the court with respect to the maximum level of risk must be reasoned and reasonable assumptions" (my emphasis). If they are not "reasoned and reasonable", I would suggest that the court can confidently discount the possibility that they give rise to an article 13(b) risk."
118. If the court concludes that it cannot confidently discount the possibility that the allegations give rise to an Art 13(b) risk and the allegations, taken at their highest, are of such a nature and of sufficient detail and substance that if true they could constitute a grave risk, the court moves on to consider whether protective measures are capable of meeting the level of risk assumed. In undertaking that evaluation, the authorities make clear that the court will be guided by the following principles:
120. i) The court must examine in concrete terms the situation that would face a child on a return being ordered. If the court considers that it has insufficient information to answer these questions, it should adjourn the hearing to enable more detailed evidence to be obtained.
121. ii) In deciding what weight can be placed on undertakings as a protective measure, the court has to take into account the extent to which they are likely to be effective both in terms of compliance and in terms of the consequences, including remedies, in the absence of compliance.
122. iii) The issue is the effectiveness of the undertaking in question as a protective measure, which issue is not confined solely to the enforceability of the undertaking.
123. iv) There is a need for caution when relying on undertakings as a protective measure and there should not be a too ready acceptance of undertakings which are not enforceable in the courts of the requesting State.
124. v) There is a distinction to be drawn between the practical arrangements for the child's return and measures designed or relied on to protect the children from an Art 13(b) risk. The efficacy of the latter will need to be addressed with care.
125. vi) The more weight placed by the court on the protective nature of the measures in question when determining the application, the greater the scrutiny required in respect of their efficacy.
126. vii) With respect to undertakings, what is required is not simply an indication of what undertakings are offered by the left behind parent as protective measures, but sufficient evidence as to extent to which those undertakings will be effective in providing the protection they are offered up to provide.
127. viii) Within the foregoing context, there is an imperative need for the applicant's proposals for protective measures to be included in the directions for the applicant's statement, including the terms of the undertakings being offered.
128. Whilst the court again retains a discretion to order the return of the subject child where the exception provided by Art 13(b) is established, where the court has concluded that the harm exception is made out and that no protective measures can be put in place that will sufficiently meet the level of risk assumed to exist, it will ordinarily not be appropriate to exercise that discretion in favour of making a return order notwithstanding those conclusions.
130. In summary, therefore, the stages for determining whether the maternal grandmother is able to rely in this case on the harm exception in Art 13(b) of the 1980 Hague Convention in accordance with the foregoing principles can be summarised thus:
132. i) Does the evidence enable the court confidently to discount the possibility that the allegations made by the mother give rise to an Art 13(b) risk.
133. ii) If not, taking the allegations at their highest, do the allegations establish a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (risk assessment).
134. iii) If so, are there protective measures available which are capable of meeting the level of risk assumed (risk management).
135. As set out above, in circumstances where I am satisfied that the court's conclusions on Art 13(b) are determinative in this case, I do not proceed to set out the legal principles governing the application of Art 12 of the 1980 Hague Convention.
137. DISCUSSION
138. Having considered the evidence in these proceedings carefully, I am satisfied that S would be exposed to a grave risk of physical and psychological harm or otherwise placed in an intolerable situation were he to be returned to the jurisdiction of the United States of America for the purposes of Art 13(b) of the 1980 Hague Convention. On the evidence available to the court, I am further satisfied that there are no protective measures that can be put in place to address the grave risk the court has identified. Accordingly, I decline to make a return order and dismiss the father's application. My reasons for so deciding are as follows.
140. Art 13(b)
141. It is not the task of this court to determine how the mother died on the night of 19 and 20 January 2024. In evaluating whether the exception under Art 13(b) of the 1980 Hague Convention is made out, this court is required to undertake an exercise of risk assessment and risk management, based on the evidence available to it evaluated summarily. In my judgment, the evaluative assessment of the evidence in this case illuminates the following matters which inform the court's determination of whether ordering the return of S to the jurisdiction of the United States would expose him to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation:
143. i) The mother died on the night of 19 and 20 January 2024, at the home of the paternal grandparents whilst having care of S.
144. ii) The post mortem undertaken following the mother's death revealed that the mother had external injuries, including contusion around the right eye; scratch abrasions at the inner canthus of the right eye extending to the nasal bridge; and multiple scratch abrasions on the anterior, left lateral and right lateral aspects of the neck; and a contusion over the upper and lower lip that occurred ante-mortem.
145. iii) The father accepts the findings of the post mortem regarding the injuries exhibited by the mother.
146. iv) The post mortem undertaken following the mother's death certified the cause of death as asphyxia by smothering.
147. v) The father accepts the findings of the post mortem regarding the cause of the mother's death.
148. vi) Following their arrest for the murder of the mother, both paternal grandparents confessed to killing the mother; implicated the father as the principal conspirator in the killing of the mother, the father being said by his parents to have instructed them to kill the mother; identified the method of killing as assault and strangulation followed by smothering, carried out in the home of the paternal grandparents; and identified the motive for the killing as financial in nature.
149. vii) S has stated to a number of professionals that he was present when the mother was killed and witnessed the murder. S's statements also implicate the father. S told his ELSA worker that he "saw what happened to his mum", that he had hidden under the bed, that "daddy killed mummy" and "daddy was sneaky".
150. viii) The evidence available to the court indicates that the father remains wanted by the Indian police in connection with the mother's murder. The charge sheet describes the father as "yet to be arrested". A "lookout circular" states the arrest of the father is "pending".
151. ix) The father's current immigration status in the jurisdiction of the United States is far from clear on the evidence before the court. Such evidence as exists is contradictory and the father has given differing accounts of his current status. Some of the documentary evidence he relies on to establish the position lacks credibility.
152. x) The Children's Guardian contends, and the father does not dispute, that it would not be appropriate for S to return to the care of the father if he were made the subject of a return order and would require a placement in the care of the relevant safeguarding authorities.
153. In light of these matters, the father accepts that the evidence before the court does not enable the court confidently to discount the possibility that the allegations made by the maternal grandmother give rise to an Art 13(b) risk. During the course of her oral submission, Ms Gray very properly made the further concession that the threshold of exposure to a grave risk of physical and psychological harm or otherwise being placed in an intolerable situation is met in respect of S.
155. This conclusion must follow from the matters I have listed above. Art 13(b) looks to the future, to the situation as it would be if S were returned forthwith to the country of his habitual residence. I am satisfied that a return order would have the effect, in the context of the devastating loss S has suffered in the murder of his mother, of summarily removing S from the care of extended family seeking to mitigate that loss and from the educational and professional network that is working to mitigate the emotional harm caused to S by the killing of his mother, with which professional support he is familiar and increasingly comfortable with. A return order would result in S being returned to the jurisdiction of his habitual residence without his current primary carer and to the place in which the person he believes was responsible for his mother's murder resides. I am satisfied that the foregoing matters would expose S to a grave risk of psychological harm, and would result in an intolerable situation for S, were a return order to be made.
157. Given that the father is currently implicated in, and subject to arrest for the murder of S's mother, and that S considers his father responsible for her killing, I am satisfied that it would not be safe for S to be returned to his father's care. Accordingly, were he to be summarily returned to the jurisdiction of the United States, S would necessarily have to be placed in state care in order to safeguard him pending an assessment of the father (there being no evidence before the court at present that the authorities in the United States could or would take this action). Whilst this court has no doubt as to the competence of the relevant authorities in the jurisdiction of the United States, in the exceptional circumstances of this case the summary removal of S from the care of extended family, and from the educational and professional network that is working to mitigate the harm that S has suffered, and his placement in state care in the United States as proposed by the father would, I am satisfied, further expose S to a grave risk of psychological harm, and would result in an intolerable situation for S, were a return order to be made.
159. In light of her concessions, properly made, Ms Gray sensibly concentrated her submissions on whether protective measures can be put in place sufficient to ameliorate the grave risk identified by the court.
161. The clearer the need for protection, the more effective the measures will have to be. However, beyond the bare list of measures set out in Ms Gray's Position Statement (and not reflected at any point in the evidence of the father), the father has provided no evidence at all as to whether the measures he proposes can be implemented, the effectiveness of such measures in the context of the loss and emotional harm that S has suffered nor the enforceability of those measures should the father fail to comply with them and/or fail to honour the undertakings that Ms Gray says through her Position Statement he is prepared to give to this court. As such the "package" of protective measures, as Ms Gray referred to it, has no foundation in the evidence and is, accordingly, no more than theoretical.
163. Ms Gray submitted that, in such circumstances it is open to this court to make a "suspended" return order. Whilst I accept that the courts of this jurisdiction have, in some cases, deferred the implementation of a return order to permit a parent to make an application in the jurisdiction of the child's habitual residence for permission to remove the child from that jurisdiction, so as to avoid disruption to the child in the interim, those cases are clearly distinguishable from the circumstances here.
165. Further, I accept the submission of Ms Holland that there is a dearth of evidence regarding the father's role in S's care prior to January 2024 and only the most limited evidence of the father having any contact with social or educational agencies in the United States to date. It is of note that the father does not mention anywhere in his evidence the impact on S of losing his mother in the circumstances set out above. The paternal family members mentioned by the father appear only in Ms Gray's Position Statement. They have not been the subject of assessment and nothing is known about their views on what transpired in India or, therefore, the narrative concerning the mother's death they may seek to provide to S. Once again, the father's current immigration status in the United States is unclear on the evidence before the court. In the foregoing circumstances, the court cannot be confident that the father is in fact willing and in a position to identify and put in place the protective measures the court is satisfied are required.
167. These proceedings were issued 3 November 2025 and, I am satisfied, the father has known that S was in this jurisdiction since at least May 2025. Accordingly, the father has had at the very least nearly five months to place before the court cogent evidence of protective measures sufficient to mitigate what, on the evidence before the court, is the obvious grave risk of psychological harm or intolerable situation consequent on a return order being made in respect of S. Ms Gray cannot provide any information on what enquiries the father has made or intends to make regarding the list of protective measures set out in her Position Statement nor the timescales for the same. Having regard to S's need for stability and security, it would not be appropriate to make a return order suspended for an indeterminate period whilst further enquiries regarding protective measures are made. Each case will turn on its own facts, but I struggle to think of a situation in which such a course of action would ever be appropriate.
169. I acknowledge that the authorities suggest that if the court considers that it has insufficient information with respect to protective measures, it should adjourn the hearing to enable more detailed evidence to be obtained. However, and once again, these proceedings were issued 3 November 2025 and, I am satisfied, the father has known that S was in this jurisdiction since at least May 2025. Accordingly, the father has had at the very least nearly five months to place before the court cogent evidence of protective measures. Once again, in circumstances where the father has produced no information on what enquiries he has made or intends to make, and where it is not clear that what entitlement he has to state services in light of the uncertainties regarding his immigration status, the court has no confidence that an adjournment would result in any clearer view of the question of protective measures than is currently available.
171. Finally, Ms Gray submits that, whilst the court does not have evidence to demonstrate what the position of S will be in "concrete" terms upon any return to the jurisdiction of the United States, the court can be confident of the competency of the child protection agencies in that jurisdiction. I am not persuaded by that submission.
173. Whilst the court can indeed repose confidence in the relevant agencies in the United States, that is not the issue. In this case, and on his account, S has suffered emotional harm arising out of the murder of his mother in his presence. I accept the evidence of the Children's Guardian that S needs specialist therapeutic support and services. Given the exceptional circumstances by which S came to be in the care of his extended family, and the complexity of S's needs, a reliance by the father on a bare submission based on the principle of comity is not sufficient to satisfy the court that the grave risk identified by the court can be sufficiently ameliorated by protective measures to permit a summary return order to be made.
175. In her admirably concise and comprehensive written and oral submissions, Ms Gray said all that could be said on behalf of the father. However, I am satisfied that it is not possible in this case for the court to conclude that the grave risk of psychological harm identified by the court consequent on a summary return order being made, and the intolerability for S of being summarily returned in the circumstances I have described, can be sufficiently ameliorated by protective measures to permit a return order to me made in this case. Having reached that conclusion, it would not be appropriate for the court to exercise its residual discretion to make a summary return order in respect of S notwithstanding that the terms of Art 13(b) are met in this case.
177. Art 12 Settlement
178. My conclusions in respect Art 13(b) is sufficient to deal with the father's application. In the circumstances, it is not necessary for me to consider the question of settlement under Art 12.
180. CONCLUSION
181. In conclusion, and for the reasons given, the father's application for a summary return order in respect of S under the 1980 Hague Convention is dismissed and I make no order as to costs. I will invite counsel to draw an order accordingly.

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