Protective measures and the reality of risk – Can mental health override a return?

What are protective measures?

Protective measures are arrangements or undertakings designed to reduce the risk to the child or parent upon return. These may include:

• Undertakings by the applicant (e.g. to provide housing, pay maintenance, or not pursue criminal charges);
• Access to local support (e.g. mental health treatment, child protection services);
• Court orders from the requesting state providing supervision or safeguards.

Courts’ approach

Courts generally start from the presumption that other Convention states can be trusted to protect children.

However, they must realistically assess:

• Whether the promised support exists in practice;
• Whether it is accessible to the respondent;
• Whether it would be sufficient given the severity of the mental health issues.

Protective measures need to be effective in the real world – not just on paper.

When measures may fail

Protective measures may be found inadequate or unenforceable if:

• The requesting country lacks a functioning or responsive welfare system;
• The respondent is undocumented or at risk of detention/deportation, making access to services impossible;
• The undertakings are vague or non-binding;
• The respondent’s condition is so fragile that any disruption poses a grave risk.

Strategy tip: Challenge measures effectively

Lawyers must be ready to:

• Present concrete evidence of systemic gaps in the requesting state;
• Highlight past failures in enforcement;
• Use expert evidence to explain why protective measures will not work for this particular parent.

Article 13(b) remains a high bar. Even when mental health is serious, and even when the parent is the primary carer, the court must be convinced that return would place the child at grave risk and that no adequate protections exist to prevent it. The key is to present a cohesive narrative, backed by expert insight, practical detail, and an unrelenting focus on the child’s welfare.

How can Ellis Jones help?

If you are facing a Hague Convention return application and believe mental health is an issue, don’t delay. Seek expert advice from our specialist solicitor, Georgina Emerson (Georgina.emerson@ellisjones.co.uk) who can assist you in gathering evidence, and act quickly. These cases are fast-moving, complex, and emotionally charged so it is important to seek specialist advice at the earliest opportunity.