Can mental health stop a Hague Return? Understanding the legal landscape

In international child abduction cases brought under the 1980 Hague Convention, courts are often under pressure to act swiftly. The underlying principle is clear: children wrongfully removed or retained in another country must be returned to their country of habitual residence as quickly as possible. However, Article 13(b) of the Convention provides a narrow but vital exception—where returning the child would expose them to a grave risk of harm or place them in an intolerable situation.

Mental health issues are increasingly raised as part of this defence. But the bar is high, and courts are cautious. In this article, we will explore what the law requires, when mental health can form a legitimate part of a 13(b) defence, and why success hinges on more than just a diagnosis.

What is Article 13(b)?

Article 13(b) of the Convention allows a court to refuse to return a child if:

This defence must be read narrowly—it’s an exception to the rule, not a loophole.

Mental health as a defence

Raising mental health in these proceedings is complex. Courts are sympathetic, but not automatically persuaded. The focus is not merely on the parent’s condition—but rather on the impact on the child if the parent is unable to function or care for them upon return.

For example:

• A parent with severe depression or PTSD, exacerbated by trauma or abuse in the requesting country, might struggle to parent effectively.
• If the parent is the child’s primary carer, and is likely to suffer a mental collapse upon return, the child may be at risk of neglect or instability.
• Mental health conditions that lead to suicidal ideation or self-harm, particularly in response to court orders or fear of persecution, are especially significant.

But even in such cases, courts often ask:

The threshold is high

The Court repeatedly emphasises the need for credible, specific, and evidence-based risk. The Convention is not to be interpreted as giving rise to an automatic return, but that grave risk is an exceptional finding.

Diagnoses alone are not enough. The respondent must show:

• The risk is grave, not speculative;
• It would materialise on return, not at some point in the future;
• The risk affects the child, either directly or via the parent’s capacity to care.

Conclusion

Mental health can be a valid and powerful component of an Article 13(b) defence, but only when the argument is made carefully, supported by clear evidence, and focused on the child’s welfare. In our next article, we will discuss the practical steps solicitors need to take when raising mental health concerns—starting with early identification and expert evidence.

Family Law experts

Leading the Family team in London is Georgina Emerson, Senior Associate Solicitor. Specialising in international child abduction and relocation cases, Georgina is a Resolution Accredited Specialist in child abduction and complex matrimonial finance—a prestigious professional recognition.

Georgina’s analytical insight and strategic acuity have won her accolades in Chambers UK 2025, where she is recognised as an “Associate to Watch” with a “measured approach,” “tactically astute” foresight, and a “good intellectual and strategic grip” of her cases.