"in the event of any negative behaviour on the part of the (father), the (mother) has the option of reporting such a matter to the police or to the prosecutor. It should therefore be expected that these authorities would react to the above-mentioned violations immediately due to the ongoing police investigation with regard to the abuse of the defendant and (C). Such protective measures, in the event of a threat to the life and health of a minor and the defendant herself, are to be applied immediately, are immediately enforceable and the procedure for their application is free of charge. It should also be noted that the prohibition on the applicant's direct contact with the daughter would also prevent the applicant from picking the minor from school, etc."
"The mother's case is that her relationship with the father has been punctuated by physical and verbal abuse and serious sexual assault including when she was sharing a bed with (C) … Some physical assaults by the father were also witnessed by (C)."
"As a result of the abuse, the mother said she fled Poland on17th September 2020 and took (C) and their pet dog with her. The father points out that it was a planned departure because when the mother left Poland she immediately went to live with a new partner and his child in England and she had organised a pet passport for the family pet. It is not clear when the mother's new relationship started."
"However, I did not consider (C), likely due to her young age, had a full appreciation of the matters to be considered and balanced, including the loss to her of not being raised in her birth country alongside her wider family."
"Whilst appreciating the mother's accounts of abuse to herself and (C) are challenged and disputed by the father, I would not recommend it be a safe option for (C) to be placed in her father's sole care in Poland if her return was ordered and (the mother) chose not to return, until there had been a welfare assessment undertaken by the relevant safeguarding authorities in Poland."
"The first question for the court is whether the mother has established there is abuse of such magnitude that there is a "grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation" (13 b)). Does the seriousness of the allegations taken at their highest after an evaluation consistent with the summary nature of the proceedings carry the case over the 13 b) threshold so that the court is not bound to return (C) to Poland?"
"There is a mass of evidence before me that the father was abusive towards the mother"; and "
"[81] I find that there is a grave risk that (C)'s return would expose her to physical harm if she were to be assaulted again by her father or to psychological harm if she were to see her mother abused by him. [82] A lesser concern raised by the mother is that (C) would be placed in an intolerable situation if she and her mother did not have appropriate financial support to give them a soft landing when they return to Poland. I will consider the undertakings put forward by the father and whether they can be effective and will protect (C) her mother below."
"I do not make findings therefore about the disputed evidence"
"[103] The question is whether the protective safeguards offered by the father will protect the child and the mother from harm. It is clear that the mother and child have a very close relationship and the child is aware of the claims and counterclaims being made by the parents. (C) has chosen her primary carer's position and as (the Cafcass office) said she is aligned with her mother. If the mother is abused by the father it will harm (C) psychologically and emotionally, particularly if the abuse happens in her presence."
"[117] Mr Holmes for the father asks me to bear in mind factors on the other side of the balance. I do. Amongst a number of factors, I bear in mind the following: a) None of the abuse either verbal or physical was reported to the Police by any of the witnesses that made statements in the Polish proceedings. b) It is particularly surprising that none of the witnesses that saw (C) being abused, including what was said to be with a belt, ever considered that they should take this to the authorities. c) The father makes a perfectly fair point when he questions why it is that the mother agreed to contact every other weekend in Poland if he was as violent as she says he was. d) The father has never tried to visit the mother and child in England despite knowing their address. I accept that is the case although travel has been disrupted for a number of months because of the pandemic. e) The mother has been recording contact for some time, it is striking that there are only two inappropriate contacts. f) If the order is not made (C) will lose touch with her extensive family in Poland. She will also not be brought up in her birth country."
"[118] Having considered the various points made for and against return to Poland, in my judgment this is one of the few cases where a child should not be returned. It is clear to me that the father will not abide by conditions imposed by the court, he has been abusive in the past and although (C) could be the subject of protective measures the mother cannot be unless measures are taken by the prosecutor. Any abuse of the mother will harm the child. [119] The father is determined to get (C) to live with him. If the mother and child were to return, I cannot see how the mother would be protected from the father's behaviour. I do not say that the Polish authorities are incapable of protecting victims of domestic abuse but any recourse to the courts and police would be after the threats or abuse had taken place. Protective measures such as a refuge or a new telephone number in my judgment would not be sufficient. In the past he has been happy to assault her in front of others. [120] As things currently stand, no direct contact should be allowed because the father threatens the child and pressurises her in one way or another. He shows no insight into her feelings. On balance, there is a grave risk that (C)'s return will expose her to physical harm were she to have direct contact with her father and psychological harm via any attack by the father on the mother. From what I have seen of the father, protective measures will not be effective, he is unlikely to submit to any court ordered restraint and (C) and her mother will be at grave risk of harm if they are returned to Poland."
"[122] The child expressed the views of her mother, she is very aware of the disputes between the mother and father and has been a witness to his assaults on her primary carer as well as being a victim of abuse herself. Bearing in mind her age and the decision I have made above I am not going on to consider whether I should take her views into account. I have found Article 13(b) to be made out. In practice, I would not exercise my discretion in favour of a return."
"[35] The wording of Article 13(1)(b) also indicates that the exception is "forward-looking" in that it focuses on the circumstances of the child upon return and on whether those circumstances would expose the child to a grave risk. [36] Therefore, whilst the examination of the grave risk exception will usually require an analysis of the information/evidence relied upon by the person, institution or other body which opposes the child's return (in most cases, the taking parent), it should not be confined to an analysis of the circumstances that existed prior to or at the time of the wrongful removal or retention. It instead requires a look to the future, i.e., at the circumstances as they would be if the child were to be returned forthwith. The examination of the grave risk exception should then also include, if considered necessary and appropriate, consideration of the availability of adequate and effective measures of protection in the State of habitual residence. [37] However, forward-looking does not mean that past behaviours and incidents cannot be relevant to the assessment of a grave risk upon the return of the child to the State of habitual residence. For example, past incidents of domestic or family violence may, depending on the particular circumstances, be probative on the issue of whether such a grave risk exists. That said, past behaviours and incidents are not per se determinative of the fact that effective protective measures are not available to protect the child from the grave risk"
"It must have reached such a level of seriousness as to be characterised as 'grave'"
"[81] I find that there is a grave risk that (C)'s return would expose her to physical harm if she were to be assaulted again by her father or to psychological harm if she were to see her mother abused by him."; and, "[120] … On balance, there is a grave risk that (C)'s return will expose her to physical harm were she to have direct contact with her father and psychological harm via any attack by the father on the mother."
"[39] Finally, it is well established that courts should accept that, unless the contrary is proved, the administrative, judicial and social service authorities of the requesting State are equally as adept in protecting children as they are in the requested State (see for example Re H (Abduction: Grave Risk)[2003] EWCA Civ 355 ,[2003] 2 FLR 141 , Re M (Abduction: Intolerable Situation)[2000] 1 FLR 930 and Re L (Abduction: Pending Criminal Proceedings)[1999] 1 FLR 433 ). In this context I note that Lowe et al observe in International Movement of Children: Law, Practice and Procedure (Family Law, 2nd edn), at para 24.55 that: 'Although, as has been said, it is generally assumed that the authorities of the requesting State can adequately protect the child, if it can be shown that they cannot, or are incapable of or, even unwilling to, offer that protection, then an Art 13(b) case may well succeed. It seems evident, however, that it is hard to establish a grave risk of harm based on speculation as opposed to proven inadequacies in the particular cases.'"
"Courts commonly assess the availability and efficacy of protective measures at the same time as they examine the assertions of grave risk; alternatively, they do so only after the existence of a grave risk and an understanding of its nature has been established by the party objecting to return."
"[96] If the judge concludes that the allegations would potentially establish the existence of a grave risk within the scope of article 13(b), then, as set out in In re E , at para 36, the court must "ask how the child can be protected against the risk"
"he has been abusive in the past"; and "