T v E (Refusal to Order Return) [2016] EWHC 3148 (Fam)

THE HONOURABLE MR JUSTICE MACDONALD

This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.

Case No FD16P00392

[2016] EWHC 3148 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 05/12/2016

Before

THE HONOURABLE MR JUSTICE MACDONALD

Between

TApplicant

ERespondent

Mr Graham Crosthwaite (instructed by Osbornes) for Applicant

Mr Nicholas Anderson (instructed by Lyons Davidson) for Respondent

Hearing Hearing dates: 15 and 16 November 2016

Judgment

Mr Justice MacDonald:

INTRODUCTION

[1]This is an application by T, a Turkish national, (hereafter ‘the father’) for an order for summary return of his daughter L, aged 2, to the jurisdiction of Turkey. The application is opposed by the mother, E (hereafter ‘the mother’). The father’s application was issued on 22 July 2016, having been signed by the father on 27 May 2016.

[2]The mother accepts that at the time she removed L from Turkey on 26 July 2015 she was habitually resident in that jurisdiction. The mother further accepts that her removal of L from the jurisdiction of Turkey was wrongful for the purposes of Art 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (hereafter ‘the Convention’).

[3]Within this context the mother defends the application on two grounds. The mother’s primary submission is that there is a grave risk that to return L to the jurisdiction of Turkey would expose her to physical or psychological harm or otherwise place her in an intolerable situation for the purposes of Art 13(b). The mother also asserts that, following L’s departure from Turkey, the father subsequently acquiesced in the removal of L from that jurisdiction for the purposes of Art13(a) of the Convention.

[4]The mother grounds her defence under Art 13(b) within a contended for situation that was recognised by the Supreme Court both in Re E(Abduction: Custody Appeal

[2011] 2 FLR 758

and Re S(A Child)(Abduction: Rights of Custody)

[2012] 2 FLR 442

, namely that the mother’s anxiety with respect to returning to Turkey with L is of such intensity as to be likely, in the event of a return, to destabilise her parenting of L to a point where the L’s situation would become intolerable. In Re E(Abduction: Custody Appeal) Baroness Hale observed at [34] that:

“Third, the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" (emphasis supplied). As was said in Re D, at para 52, "'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'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child”

In Re S(A Child)(Abduction: Rights of Custody) at [34] Lord Wilson clarified the foregoing passage as follows in light of comments made by the Court of Appeal doubting the validity of the concession recorded in that passage:

“In the light of these passages we must make clear the effect of what this court said in In re E. The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother's anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned.”

[5]In determining this application, I have had the benefit of reading a statement filed and served on behalf of the father in support of his application, together with a further statement filed and served by him in response to the mother’s case, including extensive exhibits. I have also had the benefit of two statements from the mother, again with extensive exhibits, and a statement from the maternal grandmother. I have also read the expert report of, and heard oral evidence from Dr Airey (consultant psychiatrist) on the question of the mother’s mental health and the impact on her mental health if, with the mother, the L were to be returned to Turkey.

[6]The mother has attended this hearing. The father was ordered by Moylan J to attend this hearing in person also. That order was made over three months ago on 8 August 2016. The father has failed to attend this hearing in person, he having indicated to his solicitors that he does not have a visa to enter the United Kingdom. Further investigation by his counsel at the instigation of the court revealed that the father does not have a visa to enter the country for the purposes of attending this hearing because he simply did not apply for one. In the circumstances it is clear that, notwithstanding the father having been provided with a copy of Moylan J’s order making clear his attendance at this hearing was required, the father has made no effort to attend.

[7]The father made no application to adjourn this hearing, although in his closing submissions Mr Crosthwaite submitted that the course of the hearing had demonstrated that this case requires a full finding of fact hearing on oral evidence from both parties before the court makes its decision with respect to the question of whether a defence under Art 13(b) is made out and that the court should now accede to such a course of action. For the reasons I give below I am unable to accept that submission and have proceeded to dispose of this matter at this final hearing.

BACKGROUND AND EVIDENCE

[8]The mother was born in England in 1976 and is now aged 40 years old. The father was born in Turkey in 1984 and is now aged 31 years old. It is important to note in the context of the question of the impact on the mother’s mental health of an order returning L to the jurisdiction of Turkey, and the conclusions reached by the expert psychiatrist in that regard, that the mother has some history of mental health issues. In particular: i) The mother suffered an episode of depression in 1997. Her GP records record her stating that she would rather be dead. She was prescribed anti-depressants; ii) In 2005 the mother visited her GP reporting comfort eating, poor concentration and not feeling up to going to work; iii) The mother suffered from depression in 2007 and 2008 at a time when she was suffering from various health conditions. She was diagnosed with depression by her GP and prescribed anti-depressants and ceased work for a year. The mother states she suffered from suicidal thoughts and “felt at an all-time low”. Documentation from her employer records her as expressing suicidal thoughts. Her GP records record the mother’s presentation as including an element of anxiety.

[9]The parents met in Turkey in 2009 and commenced a relationship. L was born in England in 2013 and in March 2014 the family returned to live in Turkey.

[10]The mother alleges that her relationship with the father was characterised by regular domestic abuse, which abuse worsened dramatically after their marriage and after the birth of L. The father categorically denies the allegations of domestic abuse. The mother alleges that such abuse occurred regularly and, at times, on an almost daily basis and included her being raped on repeated occasions by the father on the grounds of an asserted ‘marital right’. In respect of specific allegations, the mother cites the following alleged incidents: i) In October or November 2014 the father punched her so hard to the top and bottom of her arm she could not feel her arm and had to attend hospital. The mother states that she could not speak Turkish and that the father told doctors that a wardrobe had fallen on the mother’s arm. The maternal grandmother states that the mother gave this latter account to her in August 2015 following her arrival in England; ii) On one occasion the father came home drunk at 4.00am and made her write down on a piece of paper that she had been cheating on him and would give him L. The mother alleges she was shaking and crying. The mother alleges that thereafter the father made her leave the flat before calling her back and stating he would give her “one more chance” and that she was never to shame him again. The father denies this incident (although I note that he concedes in his statement that he “felt that E was treating me cold” on that occasion and that the mother left the flat and that he requested that she return). iii) In January 2015 the father threw a plastic child’s toy at the mother causing her a black eye because he thought she had been looking at another man. The father accepts in his statement that he threw the plastic toy “in the air” but states that the mother was hit by the plastic toy by accident. The statement of the maternal grandmother corroborates the fact that the mother had a black eye at this time when she visited England. The maternal grandmother states that the mother told her that she had sustained the injury by accident; iv) In June 2015 the mother states that she was tricked by the father into engaging in a Skype conversation during which the father purported to be another man; v) Early on 4 July 2015 the father returned home at 12.45am and threw a mobile phone at the mother’s back, threatened to kill her, hit her on the side of the face and subjected her to between four and five hours of physical and emotional abuse, including slapping, kicking and punching her and demanding that she tell him “the truth”. The father states that this incident did not occur and relies on a photograph taken later on the same day showing the mother happy and apparently uninjured.

[11]There is evidence on the face of the papers that corroborates, to a degree, the allegations of domestic abuse made by the mother. In particular, the following extracts from the conversations, exhibited to the mother’s statement, that took place between the parents by way of ‘WhatsApp’ following the mother’s arrival in this jurisdiction and prior to the father issuing proceedings tend to support the mother’s allegation of domestic abuse by the father. I set out the relevant communications as written by the parents together with the apparent meaning in brackets where necessary: i) On 16 November 2015, the father appeared to acknowledge during a conversation about the future of their relationship that he had put down and humiliated the mother (16:39 Mother: “How can u want to be wiv someone u all the time put down and humiliate. I don’t want to feel scared or feel like shit any more. All I wanted was for u to show me us had respect for me but u did not do that”. 16:39 Father: “Yes maybe u r right”. 16:40 Mother: “U make me feel all the time I am not right for u and that u can find better”. 16:40 Father: “But if I Can stil love there it is posibil Every think”); that he had said horrible things to her face (16:43 Mother: “I try to understand but after so many horrible things said to my face it just hurts too much”. 16:44 Father: “I know that is why I want to fiks that and be family again fore Ever”); and that he said she should die (16:46 Mother: “U even said for me to die”. 16:46 Father: “Yes I know”. 16:47 Father: “But I never meaning”). ii) On 8 December 2015, and after the father appeared on 1 December 2015 to have given his agreement via WhatsApp to L remaining in England with the mother and the parents had agreed to divorce (as detailed in Paragraph 20(ix) below), the father made reference to having done things to the mother (15:47 Mother: “Yes we had good times but we also had too many bad times”. 15:47 Father: “Plish try forgat what I did to U” (Please try to forget what I did to you). Later in the same exchange the mother asks the father to reflect on his anger problem, which anger problem the father does not appear to dispute (16:04 Mother: “All I can say is sort out your anger problem so u don’t treat another woman bad. Maybe u will not have this problem if she understand ur culture and beliefs. I wasn’t the right woman for u”. 16:05 Father: “Any Way thank U very moch again”). iii) In her statement the mother states that during the father’s visit to England in January 2016 she had felt strong enough to tell the father what he had put her through in terms of domestic abuse and that the father was apologetic at that time. That the mother was able to address the father’s past behaviour with him during the January 2016 visit is once again corroborated to a certain extent by the WhatsApp messages exchanged during that visit. iv) On 15 January 2016, during the father’s visit, the father again appeared to concede that he had said horrible things to the mother (12:14 Mother: “U need to think before u speak. U go crazy and then after u realise what u say but u say to many horrible things…”. 12:14 Father: “No”. 12:15 Father: “Never again”. 12:15 Father: “I don’t have any energy fore that any more”). v) On 19 January 2016, again during the visit, the father appeared to concede he had been both physically and verbally violent to the mother (20:06 Mother: “Do u realise how u used to speak to me was abuse? It wasn’t just the hitting me that hurt it was the way u treated me wiv words that killed me”. 20:06 Father: “I know E”. 20:07 Father: “That is why I really want to show my true person to u”. 20:07 Father: “I really was not that person”). The father later appeared to concede both violence and almost daily verbal abuse (20:20 Mother: “No woman should ever have to put up with the hurt u give me”… 20:24 Father: “I reallys I did wrong after you left” (I realised I did wrong after you left) … 20:25 Mother: “But u should have realised before that. U only realise after hitting me but it is more than that u should never wanted to speak to me the way u did nearly every day u talk down to me and make me feel so scared”. 20:27 Father: “I know all that was not right now”).

[12]It is noteworthy that in his statement the father concedes that the statements contained in the WhatsApp exchanges were made by him. However, he now seeks to explain them away by stating that “I know that E knows how to hurt me and she does this to try to make me write stupid things on the text messages”. Thus, the father seeks to blame the mother for his own reprehensible behaviour. Indeed, the father’s explanation is not very far from the obnoxious and offensive trope ‘she was asking for it’.

[13]In addition, there is evidence on the papers before the court that, over an extended period of time and from well before these proceedings were instigated, the mother related her alleged experience of domestic abuse whilst with the father in Turkey to a variety of professionals in the United Kingdom, who recorded what the mother said and their impressions in respect of the same: i) On 8 December 2015 the mother was referred by the Health Visitor to the Independent Domestic Violence Adviser (hereafter the IDVA). By a letter dated 23 August 2016 the IDVA relates that on 11 December 2015 the mother informed her that she suffered numerous injuries throughout her marriage, including a black eye and other bruises, that she was threatened with knives, kicked and punched on several occasions and strangled. The IDVA states that the mother reported that she was raped several times by the father. The mother stated that the father’s behaviour was very controlling and that she was very frightened of him; ii) In March 2016 the Health Visitor completed a Common Assessment Framework in respect of L and the mother. During the course of that assessment the Health Visitor, in a letter dated 24 August 2016, reports that the mother stated that she had been in an abusive relationship with the father which lasted for 18 months. The mother reported the domestic abuse as having been physical, emotional and sexual and that she had fled with her daughter as a result of this. iii) On 8 April 2016 the mother met with an Outreach Worker from local authority. She discussed issues of domestic violence with the Outreach worker and described her experience of domestic violence; iv) In August 2016 the mother reported to her GP that she had left her Turkish husband due to domestic violence.

[14]As I have noted above, the court has before it a statement from the maternal grandmother. The maternal grandmother states that she saw bruising to the mother during the course of Skype conversations, bruising which the mother dismissed as being the result of “accidents”.

[15]It is important to point out that there is also some evidence that is capable of suggesting the mother has exaggerated or embellished certain elements of her accounts of the domestic violence she alleges. Mr Crosthwaite reminds the court that, notwithstanding the very serious allegations levelled by the mother against the father, the mother had returned to Turkey in January 2015 despite the alleged incident leading her to sustain a black eye. Mr Crosthwaite also reminds the court that the mother had contact with the father on the two occasions when he came to England in January 2016 and June 2016 (including staying overnight with him at a hotel in June 2016), during which visits there were no incidents. Further, Mr Crosthwaite relies, in relation to the allegation with respect to 4 July 2015, on a photograph taken later that day and exhibited to the father’s statement. Mr Crosthwaite submits that the presentation of the mother in that photograph as happy and apparently uninjured contradicts the mother’s statement that “This was the most horrifying night of my entire life and I cannot explain the fear that I felt that I would not survive”.

[16]On 26 July 2015 the mother flew with L from Turkey to London. Whilst the parties differ on the precise circumstances that led up to the mother leaving Turkey for the United Kingdom, as I have already noted, the mother now accepts that at the time she removed L she was habitually resident in the jurisdiction of Turkey and that her remove of L was wrongful for the purposes of

Art 3 of the Convention

[17]There is evidence on the documents before the court that the father continued, on occasion, to be very unpleasant to the mother after she had arrived in England and that the mother expressed on a number of occasions following her return to the jurisdiction with L high levels of fear and anxiety within the context of her experience in Turkey.

[18]With respect to the father continuing on occasion to be unpleasant to the mother after she had arrived in England (which, the mother informed Dr Airey, made her feel anxious and depressed), the WhatsApp social media messaging and telephone contact that occurred between the parents included the following exchanges between the mother and the father: i) On 31 July 2015 the mother alleges that the father left her a voice message in which he said that animals were better parents than her and “You scared from everyone you cannot look after your daughter”. In a further message on the same day the father said to the mother that “you are a piece of shit”. ii) The maternal grandmother states that she overheard the father shouting at the mother on the telephone and calling her names, including “prostitute”, “slag” and “bitch”. During this conversation the maternal grandmother states that when she took the father to task about this conduct he called her a “gypsy”. It is notable that in his statement that, whilst denying the allegations of verbal abuse to the mother, the father admits this latter part of the exchange. I further note in this context that the WhatsApp messages show clearly that on 10 October 2015 the father called the mother a “bitch” (23:45 Father:

“U r bitc” (You are bitch)); iii) The mother alleges that the father threatened her on Skype on 25 December 2015 and 7 January 2016, which threats the father later admitted on WhatsApp and in his second statement. On 25 December 2015 the mother alleges that the father threatened her during a Skype or telephone call by stating that he did not know what he would do to her if he came to the United Kingdom because he hated her so much and that he did not know how he would control himself. The mother alleges that the father communicated with her by Skype in the early hours of 7 January 2016 and said “You think I am stupid. Shame on you. See you on Monday”

. The mother reported this further Skype exchange to the IDVA on the same day, the IDVA recording that the mother stated that the father had said to her “you see what I will do when I come to the UK”. On 8 January 2016 the mother reported the statements made by the father on 25 December 2015 and on 7 January 2016 to the Police. A WhatsApp message on 11 January 2016 indicates that the father accepted he made these threats (18:53 Mother: “U have to realise that when u made threat to me I had tell the police because it was not right to say what u said. I cannot be around u. I old u do not come to this house as it will be a problem”. 18:54 Father: “E u don’t have to tell police”. 18:54 Father: “I m there”. 18:54 Father: “I respect what us say”. 18:55 “But it was stupid feelings when I sad all this thinks” (But it was stupid feelings when I said all these things). Further, the father admits in his statement dated 28 October 2016 that he made the threats the mother reported to the Police, characterising them as “the silly things I had said to her” and that “he did not mean that as it sounds to English people”. iv) The mother alleges that on 7 July 2016 the father threatened to kill her if he did not get L and swore on his mother’s life during a Skype session. The WhatsApp messages show that on that date the father threatened the mother after she had closed the Skype window on him (08:01 Father: “If u close my face again I will fuck u”). The WhatsApp message also contains a contemporaneous allegation by the mother that the father had threatened to kill her on 7 July 2016 (08:06 Mother: “U just said that if you don’t get L u will kill me and u swear on ur mothers life”. 08:06 Father: “U lie”. 08:06 Mother: “U have just said it”). v) On 30 August 2016 the father again verbally abused the mother via WhatsApp (14:58 Father: “Why U not answer if U on park”. 14:59 Father: “U fucking lays all The time”. 16:03 Father: “Fuk U. U will see”). vi) Between 14 September 2016 and 16 September 2016 the mother alleges she received a series of telephone calls, Skype communications and WhatsApp messages in which the father variously called her “a fucking bastard” and a “motherfucker” and threatened to “fuck her” and that she would “see what happens”.

[19]With respect to the mother expressing to professionals on a number of occasions following her return to the jurisdiction with L her fear and anxiety, the following aspects of the evidence are of note: i) The maternal grandmother states that upon arriving in England in July 2015 the mother appeared to be an “emotional wreck” and that she appeared “broken” and “had lost all self-esteem”. The maternal grandmother relates that the mother “seemed to be very scared and persistently on edge”. The maternal grandmother further relates that “the effect upon E being served with these proceedings has been simply devastating to watch. She has been crying constantly, not sleeping or eating properly and jumping up in fright at night times”. The maternal grandmother notes that one of the most difficult things for the mother is having to recount the behaviour to which the mother alleges the father subjected her. ii) As noted above, on 8 January 2016 the mother reported to the Police the threats that the father concedes he made on 25 December 2015 and 7 January 2016. The Police documentation records that the mother informed the Police on that date that she was “extremely frightened” and “fears for her life”; iii) On 19 January 2016, during the period the father was in England for contact with L, the mother made clear to the father on WhatsApp that she was fearful of him (19:59 Mother:

“No it cant. In my head I am scared all the time of u. That will never change”. 20:00 Father: “It will E”. 20:00 Father: “Promise you”). iv) On 8 April 2016 the mother met with an Outreach Worker from local authority and informed her that if she returned to Turkey she feared for her life. The Outreach Worker considered that the mother demonstrated low self-confidence and low self-esteem and had high levels of anxiety. v) A letter from the mother’s GP dated 26 August 2016 confirms that on 12 August 2016 the mother was prescribed antidepressants after presenting with anxiety and depression. She is recorded as “suffering from significant stress and anxiety”

. She reported that she was “anxious and on edge all the time”. The mother informed the GP that the stress was due to legal issues following separation from her husband due to domestic violence. On examination, the GP reports that the mother was tearful and anxious but denied any plans for suicide. The GP diagnosed the mother with an anxiety state. The GP felt she would not be able to cope mentally with a return to Turkey. vi) In her statement dated 16 September 2016 the mother states that “Father issuing these proceedings has left me in a state of extreme anxiety and it has brought back the horrendous stress I was suffering from previously leading up to myself and L leaving Turkey in July 2015”. The mother goes on to state that “I truly believe that I would not be able to cope with life on a day to day basis if I returned to Turkey with L and that the effect upon my mental health would be such that this would impact upon the care of L”. The mother further states that “I simply cannot face returning to Turkey for the abuse and control to continue” and says that “the thought of returning to Turkey makes me feel suicidal as does the thought of L returning without me”.

[20]With respect to the exchanges between the parents relevant to the question of whether or not the father subsequently acquiesced to L’s removal to England after she was taken from the jurisdiction of Turkey, the following matters are in my judgment relevant: i) On 8 September 2015 the father sent the mother a picture on WhatsApp of flight details back to Turkey and asked her to choose the flight she wished to take that he would pay for that flight for the mother and L to return; ii) By 10 October 2015 the parents appeared to be discussing the disposal of the mother and L’s belongings in Turkey (15:36 Mother:

“Only my jumper u buy me the red blue and white I like but everything else can go. Also my curling tongs for my hair and my handbag u get me in gumbet. 15:37 Mother: “L’s clothes should go to family. Remember there is things under the bed”); iii) On 21 October 2015 the parents had an exchange on WhatsApp regarding the father’s possible plans to move from Istanbul to another city in two months and open a new business. There was no discussion of L or the mother returning as part of this plan; iv) On 22 October 2015 the father appeared to be accepting of the status quo (17:16 Father: “I never want forget speand time with u and L” (I never want to forget spending time with you and L). 17:17 Mother: “U will in time. U will make new memories wiv someone else”. 17:17 Father: “U and L olways be in my mind and ??”. 17:17 Father: “Maybe I will but I will not forget my past”); v) On 30 October 2015, when discussing the merits of additional contact with L with the mother, the father appeared to acknowledge that L now had a new life in England (20:40 Father: “I think is not good like that every day play with her feeling”. 20:41 Father: “I have to be more strong”. 20:41 Father: “end let she consatreyt her new life” (and let her concentrate on her new life).20:42 Father: “Jast let me I try if I can do or not” (just let me try and see if I can do it or not). 20:42 Father: “If not we have to do same think about that” (if not we have to some thinking about that)). vi) On 10 November 2015, in an exchange that began with the father calling the mother “stupid”, the father indicated he would try to stop using bad language but if he was unable to he would exclude himself from the mother’s life (11:37 Mother: “I don’t want L to feel any bad feelings between me and you. I never sad bad things to her about u but I do about me and all I say is please don’t do this even I know u hate me and the other thing I hate is swearing around L”. 11:37 Father “OK”. 11:38 Mother: “If u can do this then u will never see me angry or miserable face with u”. 11:38 Father: “I will try my best if I can do if not I will respect and go away from your life”); vii) On 27 November 2015 the mother alleges that she was speaking to the father by telephone when he put a man called ‘Hank’ on the phone who the father stated was his ‘lawyer’. ‘Hank’ told her to put L on a plane “on Tuesday” otherwise she would “be arrested and in prison”

. The father later suggested that ‘Hank’ was a man at the bar who had been drunk. The mother reported this to the Police on 3 November 2015. The WhatsApp messages also reflect an exchange that is allegedly with ‘Hank’, with messages from ‘Father’ claiming to be from his lawyer who states he has never lost a court case, claims also to be a judge and tells the mother that she will be “sorry” and that until L is in Turkey the mother “will not sleep”. Later the WhatsApp messages from ‘Father’ once again appear to be in the first person from the father, the father saying he will buy a ticket for L; viii) On 30 November 2015 the father appeared to accept the parents could not be together (22:51 Mother: “I am sure we cannot be together”. 22:51 Father: “Ok thank U Then that is help me very moch” (OK thank you then, that is helping me very much)). ix) On 1 December 2015 the parents appear to have come to an understanding that L would not be returning to Turkey. The following parts of the exchange are relevant: a) The father informed the mother that his friend was angry with him for telling him that he did not wish to take L (10:40 Father: “I told him this morning I dont want take L Hi is get ungre with me” (I told him this morning I don’t want to take L, he is getting angry with me). b) Thereafter, the father suggested he had made arrangements for L to enjoy her life with her mother and stated he did not want to take L from the mother (10:43 Father: “I said U will fined out soon whay I done fore U not fore me”. 10:44 Father: “U will know what I said to them fore u”. 10:44 Father: “U have to be happy”. 10:45 Father: “Did any one phone u about that ?”. 10:46 Father: “Dont think I did that for U I jast did for L” … 10:47 Mother: “What did u do for L”. 10:47 Father: “Let her enjoyour with mum” (Let her enjoy her mum). 10:48 Mother: “Enjoy what”. 10:40 Father: “Life”. 10:49 Mother: “So what will I find out soon?” 10:49 Father: “U will find I did not want to take L from U”. c) The father then indicates that “I cansel all” and that his heart made him do this. The parents then began discussing certain belongings and divorce. The father indicated he would send legal documents to the mother for signature and stated that L would keep his surname. d) A little later, and in the context of the foregoing exchange, the father seeks reassurance about still being able to see L, which reassurance the mother gives to him (11:20 Father: “I hops U will kep your promice about me to see L”. 11:20 Father: “u will not forgat”. 11:20 Mother “It will be put on papers about L”). e) The father then indicates his acceptance of the mother’s plans for L (11:25 Mother: “I have told u all I will do will be for L. I am not interested in anything except a great future for L. I will only think about doing things with her-swimming, dancing, music all these things she loves and getting her into a fantastic school”. 11:26 Father: “Ok”. 11:26 Father: “I hop U Can do”. 11:26 Mother: “I will show u”. 11:27 Father: “Ok Then”. 11:27 Father: “Good”. 11:27 Father: “Bye”. 11:27 Mother: “Bye”). x) Following the exchange on 1 December 2015, at no point during the course of the ensuing WhatsApp messages available to the court does the father request the return of L to Turkey, although there clearly continue to be disputes about the level of contact. I accept that the father and the mother were also communicating by way of telephone conversations and by way of Skype. The WhatsApp messages following 1 December 2015 continue however to indicate that the father’s focus remains on having contact with L in England and Turkey rather than on seeking L’s return. xi) On 11 January 2016 the father appeared to suggest on that all he wants to do is see his daughter and then go back to Turkey (18:31 Father: “I will stay there 10 day’s jast I want to see L same times whic is mean I know your mum hate me and doesn’t have to see me I respect that and u have to know I m not coming there fore problem” 18:33 Father: “Let me see my daughter give her golds my family give her and same present I bud before and here and we can be nice way make her happy” 18:33 Father: “That is all I want”… 19:02 Father: “If I cannot see her then I will back home”). The father makes clear that it will be for the mother to give L the gold at the “right time”. xii) On 14 February 2016 the father acknowledged that should L go to Turkey it would be for contact and would be with her mother until she was old enough to go by herself (22:24 Mother: “I never said u cant see L. I just never said when it was possible. U want everything straightaway and it doesn’t happen like that. Anyway I will speak to my lawyer this week. I am not going to say u can take L to Turkey because right now she is too young to be separated from me. She is only 2 and I don’t trust u just like u don’t trust me”. 22:24 Father: “Ok”. 22:24 Father: “I know that long time u don’t trust me”. 20:25 Father: “But plish don’t lies to me again U forgat very easy what U said be fore” and later at 22:49 Father: “Plish give chance to me” 20:50 Father: “Try bring her till she is Can come her self”). xiii) In April 2016 the father is concerned to have an input in the housing that L will have in England (16:28 Father: “I don’t want my douther to stay this litel place All her life like u”16:28 Father: “I have to know about her place”). xiv) The maternal grandmother recalls that on one occasion in January 2016, when the father was having contact with L at her property, that he stated that he could see that L had a better life and education in England and that he would be happy to maintain a relationship with L in the future by Skype. The maternal grandmother states that at no time was she made aware that the father had asked for L to be returned to Turkey; xv) On 22 January 2016 the mother told the IDVA worker that the father was planning to move to the United Kingdom to have a relationship with L; xvi) Certain of the voicemail messages left by the father reinforce the picture presented by the WhatsApp messages of a father not seeking the return of his child, for example a message in which the father states “I cannot come over there, I don’t have any choices. I cannot live here I cannot hear L come here so I will not make myself you hurting my life. If I have one chance one day I will take L but not now. I will be strong wait. If she recognise me when she grow up I will be lucky, if not, I don’t care really”.

[21]Within this context, the mother says in her statement that the statements and conduct of the father as set out above led her “to think, without any hesitation, that he was not pursuing her return and agreed to her remaining in this jurisdiction”. The mother says that, in this context, it came as a surprise to her when she was served the father’s application under the Convention issued on 22 July 2016, stating “As far as I was concerned, Father had made no mention of L returning to Turkey, other than for holidays, since November 2015 and he had indicated to me, and shown in his actions, that he wished for L to remain living in England and he accepted how happy she was here”.

[22]It is however, also very important to note in this context that the mother also makes a very clear statement that “I genuinely felt that, if I refused to co-operate and did not make L available for contact with Father, he would cause significant problems for me and he has always used the same threat of instigating Hague Convention proceedings against me”. Within this context, I once again note that whilst the court has before it an extensive account of the parents’ communications by WhatsApp, the parents were also interacting extensively via other modes of communication.

[23]Finally, it is important in this case to note L’s developmental needs. Since her arrival in England concern has been expressed about L’s development, social communication and language skills. A report from the speech and language therapist dated 22 August 2016 confirms significant delay in L’s language, play and attention levels with significant speech and language delay compared with an average child of her age. A report from the paediatrician who saw L on 1 September 2016 identifies that her attention skills, play and language development are delayed and are more typical of a child of 12 to 18 months old. L has difficulty in social communication and interaction. There is a suspicion, but no confirmation, of an autism spectrum disorder. The paediatrician states that if L witnessed domestic abuse this would have long term implications for her social and emotional development.

THE EXPERT EVIDENCE

[24]The expert evidence in this case is provided in the form of a jointly instructed expert report from Dr Airey, consultant psychiatrist. Dr Airey’s qualifications are set out in his report. In oral evidence, Dr Airey made clear that he has very considerable experience in the assessment of post-traumatic stress disorder, including experience in identifying cases in which the patient is fabricating that disorder.

[25]Dr Airey notes some significant events in the mother’s early years, including parental separation, exposure to domestic violence by her step-father and anxiety when sitting exams. In his report, Dr Airey states that interpersonal relations will have affected the mother’s development. Dr Airey further notes the episodes of poor mental health for the mother that I have already summarised. Within this context, Dr Airey concludes that the mother’s background history suggests that there may be some tendency towards anxiety as a personality trait which in turn may influence the development of a more discrete anxiety disorder, including PTSD.

[26]Having examined the mother and considered the papers in this matter, including the mother’s medical records, Dr Airey concludes that the mother is suffering from post-traumatic stress disorder. Dr Airey states that it is this disorder in the mother that yields the mother’s feelings of anxiety and low mood. He opines that the disorder causes for the mother a significant degree of functional impairment and describes it as a significant mental health difficulty. Dr Airey further concludes that, whilst the mother does not have a Personality Disorder, there may be the presence, in the background, of an anxious personality trait that may make her more vulnerable to developing mental illness or affect the course of that illness.

[27]Whilst Mr Crosthwaite challenged Dr Airey in cross-examination as to his diagnosis, highlighting factors that might militate against that diagnosis being correct, Dr Airey maintained his conclusion. In particular, he rejected the proposition that the fact that the mother had remained in contact with the alleged source of her trauma, and had even had direct contact with him, undermined the diagnosis. In this regard, Dr Airey said that human interaction in the context of domestic abuse is complex and that shame, guilt, the dynamic between the abuser and the victim, a tendency to push trauma to the back of the mind and even a naïve wish for matters to be ‘normal’ will all impact on those interactions, especially where parties share a child. Within this context, Dr Airey considered evidence of the mother maintaining contact with the father was “insufficient to overturn the presentation of the person I interviewed”.

[28]With respect to his diagnosis of PTSD, Dr Airey makes clear in his report, and repeated in the witness box, his appreciation that matters of fact are for the court and not for him. Within this context, and when pressed by Mr Crosthwaite, Dr Airey agreed that were the court to conclude that the mother’s allegations concerning domestic abuse were false, this would necessarily undermine his diagnosis of post-traumatic stress disorder. Dr Airey also expressly recognised in his report and in evidence that a psychiatric diagnosis cannot rely on the same type of objective symptoms or test results as other branches of medicine. However, and again making clear that matters of fact are not for him, Dr Airey stated that drawing on his considerable experience of clinical examination and his considerable experience of the assessment of post-traumatic stress disorder, including experience in identifying cases in which the patient is fabricating the disorder, he considered that her presentation was entirely compatible with the presence of PTSD and that the mother presented with significant symptoms of both anxiety and depression. In his statement, Dr Airey makes the following comments on this issue:

“In making the diagnosis of PTSD, the clinician has to accept that trauma has occurred. This may be a straightforward step in the clinic, but within contested proceedings, with contested facts, it is not so easy. I therefore need to look to how the person presents, the nature and credibility of their account of the trauma and how their presentation (both signs and symptoms) maps against the accepted diagnostic criteria. PTSD is also a little unusual amongst psychiatric diagnoses, as there may be considerable secondary gain for the person, e.g. monetary gain or the influencing of a decision within proceedings. For this reason, I approach everyone with PTSD with initial degree of scepticism. It also needs to be acknowledged that the symptoms of PTSD can overlap with ‘normal’ human reaction to trauma, i.e. to blend into a non-clinical state. Further, it is not difficult to ‘Google’ the term PTSD and quickly learn what the condition is, and what to say, to try and deceive or influence the doctor. In this case, I would have to say that [the mother] did not raise the diagnosis of PTSD, but I did. Also, she did not present as having rehearsed her answers. Overall, I am convinced that [the mother] has PTSD as a diagnosable condition.”

[29]Within the forgoing context, Dr Airey further states that the mother has a firmly established belief system that were she to return to Turkey her life would be in grave danger. As to the interrelationship between the diagnosis of PTSD and the mother’s belief system, in oral evidence Dr Airey considers that the mother’s belief system heightens the symptoms she has consequent upon her PTSD.

[30]The intensity of the mother’s belief system by the time she was seen by Dr Airey on 17 October 2016 is illustrated by the mother’s response when Dr Airey read to her one of the questions he had been asked to give an opinion on, namely ‘What is the psychiatric or psychological impact upon the mother if she returned to Turkey with L?’:

“She replied, ‘I can’t return…I physically can’t return’, this as she has left her husband and ‘shamed him so much’, this ‘to do with the culture’. She said she would fear for her life and if not killed by him, then she would be killed by a family member. She said that if she returned, she would regard it as ‘signing my own death certificate’. She added that if she did return ‘I wouldn’t last long’. She said she would have a breakdown, and knows that in Turkey ‘they kill wives’. She said that when she was living there, a woman was murdered, and every day on the news she would hear of both mothers and children being killed. She said [the Father], on one occasion, spoke to her about how people could accidentally fall off a balcony.”

[31]Dr Airey is of the view that her belief system, which he considers has become more concrete over time, has a significant impact on her mental health and that there is no realistic prospect of it being altered. Within this context, Dr Airey states in his report that he is of the view that her belief system inevitably means that returning to Turkey will cause her mental health to deteriorate greatly. He reiterated in cross-examination that, whilst it is not possible to measure it with a slide rule (as he put it), his clinical impression was that the mother’s belief system was genuine rather than a device. He was further of the view that the way she presented to him led him to conclude that the mother will not come to believe that it will be safe for her to return to Turkey.

[32]Dr Airey further noted that whether or not there is any truth in what the mother believes, it is the fact that she believes it that is important. Dr Airey considers that, in these circumstances, whatever reassurances are given this will not alter the mother’s belief that a return to Turkey is likely to have terrible consequences. Within this context, Dr Airey reiterates his opinion that a return to Turkey would cause the mother’s mental health to deteriorate significantly and states that:

“I approach this case, not necessarily from the point of view of needing to wholly accept the truth of what [the mother] says about her past experiences. It is her beliefs that are important. In my opinion, the nature and intensity of these beliefs prevents there from being any ‘protective’ measures that can be put in place, to ensure a safe return to Turkey.”

[33]Expanding on this conclusion, Dr Airey opined that treatment for PTSD in Turkey as a form of protective measure is not possible in circumstances where the very act of return would cause a greater deterioration in the mother’s mental health, i.e. one would have to accept a significant worsening of the mother’s mental health before one got to the point of being able to put in place measures in Turkey designed to ameliorate that negative development. In a useful analogy drawn to illustrate this point, Dr Airey stated that if one were seeking treat a soldier suffering from PTSD as the result of having been involved in an IED explosion in Afghanistan, one would not commence that treatment by returning the soldier to Afghanistan. Further, Dr Airey stated that no treatment would be effective until the uncertainty caused by these proceedings had come to an end and that if the proceedings were concluded by an order for return then, once again, the position would be that the very act of return would cause a great deterioration in the mother’s mental health. Within this context, Dr Airey was unable to identify any protective measures that could be put in place to mitigate the impact on the mother’s mental health of her being compelled to return to Turkey with L. THE LAW Harm

THE LAW

[34]The Supreme Court considered the test to be applied when assessing whether the defence under Art 13(b) of the Convention is made out in Re E (Children)(Abduction: Custody Appeal)

[2011] 2 FLR 758

. The applicable principles may be summarised as follows: 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. 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. 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. 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’. 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. vi) Where the defence under Art 13(b) is said to be based on the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child’s situation would become intolerable the court will look very critically at such an assertion and will, among other things, ask if it can be dispelled. However, in principle, such anxieties can found the defence under Art 13(b).

[35]As to the discretion that arises to be exercised by the court in the event that the court is satisfied that a defence under Art 13(b) is made out, Lord Wilson observed as follows in Re S:

“Technically the establishment by a respondent of the grave risk identified in Art 13(b) confers upon the court only a discretion not to order the child’s return. In reality, however, it is impossible to conceive of circumstances in which, once such a risk is found to exist, it would be a legitimate exercise of the discretion nevertheless to order the child’s return”

Acquiescence

[36]In R v R (Jurisdiction and Acquiescence)

[2016] EWHC 1339 (Fam)

at [31] to [36] I summarised the key legal principles underpinning the defence of acquiescence arising from the judgment of Lord Browne-Wilkinson in Re H (Minors) (Abduction: Acquiescence)

[1998] AC 72

as follows: i) For the purposes of Art 13(a) of the Convention, the question whether the wronged parent has ‘acquiesced' in the removal or retention of the child depends upon his actual state of mind; ii) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent; iii) The trial judge, in reaching his decision on that question of fact, will be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law; iv) There is only one exception to this approach. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced; v) A parent cannot be said to have acquiesced in the unlawful removal or retention of a child unless he or she is aware of the act of removal or retention, is aware that it is unlawful and is aware, at least in general terms, of his or her rights against the other parent; vi) It is not a prerequisite for the establishment of the defence of acquiescence that a parent has correct advice or detailed knowledge of his or her Convention rights provided it is shown that he or she knew in general terms that he or she could bring proceedings; vii) When considering written evidence of the parties' intentions, the written statements in question must be in clear and unambiguous terms in order to establish acquiescence; viii) Merely seeking to compromise matters by permitting the abducting parent to remain in the country to which he or she has taken the children provided that the wronged parent is satisfied as to other matters and issues between them has not been regarded as acquiescence for the purposes of the 1980 Hague Convention; ix) Delay, and in particular unexplained delay, in taking action can be indicative of acquiescence. SUBMISSIONS Harm

SUBMISSIONS

[37]Mr Anderson bases his primary case on the defence of harm under Art 13(b) and submits that the defence of harm is made out in this case both on the basis that there is objective, verifiable evidence that supports the mother’s belief that a return to Turkey would be catastrophic for her and on the basis of the nature and extent of the mother’s subjective fear harm, irrespective of the truth of otherwise of the allegations of domestic abuse made by the mother. Mr Anderson submits that there are no protective measures sufficient to address the harm identified in this case.

[38]Mr Anderson submits that there is at least a prima facie case that the mother’s immutable and immovable fear is based on an objective, verifiable reality of domestic abuse as evidenced by the WhatsApp communications between the parents and the concessions made by the father in his statement. Mr Anderson submits that this evidence demonstrates clearly that there is at the very least ‘some truth’ in the mother’s assertion that she suffered physical and verbal domestic abuse perpetrated against the mother, which objectively verifiable reality has led to the post-traumatic stress disorder suffered by the mother and diagnosed by Dr Airey and to the immovable belief system with respect to the harmful consequences of a return to Turkey observed by Dr Airey during his examination of the mother.

[39]In the circumstances, Mr Anderson submits that regardless of the precise nature and extent of the father’s conduct towards the mother it is plain on the expert evidence before the court that the mother’s fears are based on an objective reality. Mr Anderson submits that, within this context, this case is on all fours with the position Charles J found himself in at first instance in Re S as recorded by Lord Wilson in Re S at [29(d)], namely that following: “a careful appraisal of the documentary evidence, including the mass of emails between the parents, he concluded that, as counsel for the father had been constrained to acknowledge, the mother had ‘made out a good prima facie case that she was the victim of significant abuse at the hands of the father”.

[40]Within this context of evidence, and whilst Mr Anderson submits in the alternative that the expert evidence is also capable on its own of evidencing a fixed and immutable subjective fear on the part of the mother independent of the truth or otherwise of the allegations, Mr Anderson submits that the court does not need to go further than the objectively verifiable reality in finding the Art 13(b) defence made out, citing Lord Wilson’s conclusion in relation to the position Charles J found himself in in Re S:

“In the light of his conclusion at (d), which on any view was open to him, it seems to us that it was unnecessary for Charles J to have continued to address the mother's subjective perceptions. For the effect of his conclusion was that the mother's anxieties were based on objective reality. So it added nothing for him to refer, as in effect he did in three separate paragraphs of his substantive judgment, to the mother's ‘genuine conviction that she has been the victim of domestic abuse', by which he implied that she was convinced about something that might or might not be true.”

[41]As to the exercise of discretion, Mr Anderson relies on submits that whilst, technically, the establishment by the mother of the grave risk required by Art 13(b) confers upon this court only a discretion not to order the child’s return, it would be entirely inappropriate for the court to do anything other than not to order the return of L with her mother to Turkey where the court is satisfied that to do so would place L in an intolerable situation.

[42]On behalf of the father Mr Crosthwaite submits that the court has before it no cogent evidence of domestic abuse and that the mother has manufactured such a history in an effort to mislead the expert into a false diagnosis and the court into an erroneous conclusion in respect of Art 13(b).

[43]With respect to the content of the WhatsApp messages in which the father appears repeatedly to concede both physical and verbal abuse, Mr Crosthwaite posits that the father may have been making false concessions as a means of seeking a rapprochement with the mother (notwithstanding that the father, on occasion, continued to use WhatsApp to verbally abuse the mother). In this regard, Mr Crosthwaite relies on the fact that the mother has continued to have contact with the father both indirectly and directly as evidence of the mother’s fabrication. Further, as I have already stated, Mr Crosthwaite relies on the photograph taken on 4 July 2015 as lending the lie to the mother’s accusations concerning the early hours of that morning. Mr Crosthwaite submits that if the mother is able to exaggerate in this respect then she is able to mislead the court and Dr Airey. Within this context, Mr Crosthwaite submits for the court to properly consider whether Art 13(b) is made out by reference to an objectively verifiable level of domestic violence, the court has to be satisfied as to the precise nature and level of that domestic abuse and that the only means of doing so is hold a full fact finding hearing.

[44]In any event, Mr Crosthwaite submits that protective measures can be put in place to protect the mother from any further domestic abuse, in the form of the ordinary undertakings to the court. In respect of the mother’s mental health and expressed fears with respect to returning to Turkey, Mr Crosthwaite once again submits that protective measures can be put in place by means of treatment available in Turkey (although no particulars of the same are provided beyond the bare assertion that the father has private health insurance).

Acquiescence

[45]On behalf of the mother, Mr Anderson submits that the evidence before the court demonstrates that the father acquiesced both as a matter of fact, and from the point of view of the mother to L having been removed to this jurisdiction.

[46]Mr Anderson points out that since the arrival of the mother and L in this jurisdiction the father has known their whereabouts, that since that date the father has had daily contact with the mother and that since at least November 2015 the father has known about his remedy under the Hague Convention. Within this context, Mr Anderson submits on behalf of the mother that, save for possibly one occasion in November 2015, the father “expressly acquiesced” to L remaining in this jurisdiction following her removal from the jurisdiction of Turkey. In this regard, Mr Anderson relies primarily on the content of the WhatsApp messages and the father’s attendance in England for contact, which he submits are consistent with the mother’s evidence that the father was content for L to remain in England. Mr Anderson submits that the father’s words and actions are entirely consistent with a parent having come to terms with the situation and not seeking a return of the child. Within this context, Mr Anderson submits that by January 2016 the father had, as a matter of fact, acquiesced to L remaining in the jurisdiction of England and Wales.

[47]Mr Anderson further submits that this case falls in any event into the ‘exceptional’ category in that even if he himself did not believe that he was acquiescing, the actions of the father clearly and unequivocally indicated, and led the mother to believe that the father was not asserting or going to assert his right to the summary return of L to Turkey and were inconsistent with such a return. Mr Anderson submits that, whatever the father’s actual intention, what the father said and did led the mother to believe that he was not seeking the return of L to the jurisdiction of Turkey. Accordingly, Mr Anderson argues on the mother’s behalf that even if he did not intend L to remain in England, he communicated the opposite to the mother by his words and behaviour. Mr Anderson also observes as an aside that the father’s failure to apply for a visa in order to attend this hearing of his application for a return order is consistent with the narrative he has been providing to the mother since November 2015.

[48]As to the discretion that arises should the court be satisfied that only the defence of acquiescence is made out, Mr Anderson submits that the court should exercise its discretion in favour of not returning L to Turkey. He submits that such an outcome is the only way that L could remain in the care of her mother, given the contended for impact on the mother of a return to Turkey, that given L’s particular needs in terms of language development and paediatric input the change of circumstances represented by a return to Turkey would be antithetic to her best interests and that given the degree of settlement (in the non-technical sense) in England, a return to Turkey should not now be contemplated over 16 months after her arrival in this jurisdiction.

[49]On behalf of the father Mr Crosthwaite puts front and centre in his submissions on acquiescence the passage in the mother’s statement which reads “I genuinely felt that, if I refused to co-operate and did not make L available for contact with Father, he would cause significant problems for me and he has always used the same threat of instigating Hague Convention proceedings against me”. His short submission is that this concession on the part of the mother demonstrates that father did not acquiesce, and cannot be taken to have done so, in circumstances where he was making clear to the mother, on her own evidence, that an application under the Hague Convention would be made if she did not accede to his demands in respect of L.

[50]Within this context, with respect to the question of whether the father acquiesced as a matter of fact, Mr Crosthwaite submits that the WhatsApp messages and the father’s attendance in England for contact demonstrate not a man coming to terms with a situation he accepted but rather a man treading gently to effect a reconciliation, that reconciliation being his subtle means of ultimately securing L’s return to the jurisdiction, whilst making clear to the mother at all times that an application would be made under the Convention if agreement in respect of a return could not be reached. In so far as the father did not explicitly press the mother to return to Turkey and concentrated on the question of the parents’ relationship and contact, Mr Crosthwaite submits that this is all of a piece with the father’s approach to securing a return of L through a reconciliation with the mother. In this regard, Mr Crosthwaite relies on the fact that merely seeking to compromise matters by permitting the abducting parent to remain in the country to which he or she has taken the children provided that the wronged parent is satisfied as to other matters and issues between them has not been regarded as acquiescence for the purposes of the 1980 Hague Convention (see P v P (Abduction: Acquiescence)

[1998] 2 FLR 835

). Similarly, Mr Crosthwaite relies on the principle that a parent who enters into a conditional agreement that the children remain in the jurisdiction whilst discussions continue may not be held to have acquiesced for the purposes of a Convention (see Re W (Acquiescence: Children's Objections)

[2010] 2 FLR 1150

[51]With respect to the mother’s argument that this case falls into the ‘exceptional’ category in that even if he himself did not believe that he was acquiescing, the actions of the father clearly and unequivocally indicated, and led the mother to believe that the father was not asserting or going to assert his right to the summary return of L to Turkey and were inconsistent with such a return, Mr Crosthwaite again submits that the statement by the mother to which I have already referred provides a complete answer to that argument. On behalf of the father Mr Crosthwaite submits that the mother’s understanding in this regard negates any argument that she was led to believe by the father’s statements and actions that he was not going to assert his right to the summary return of L. DISCUSSION Harm

DISCUSSION

[52]On the mother’s primary case, I have reached the conclusion that to order the return of L to the jurisdiction of Turkey with her mother would place her in an intolerable situation for the purposes of Art 13(b) of the Convention in that it would leave her in the care of a mother whose mental health would suffer a significant deterioration consequent upon such a return, which in turn would adversely impact on her care of L, a child with emotional needs more complex in nature than most children of her age. My reasons for so concluding are as follows.

[53]Whilst Mr Crosthwaite argued that the court cannot proceed to evaluate the defence under Art 13(b) in this case without a finding of fact hearing to determine the precise nature and extent of the domestic abuse in this case, his client maintaining his denial that any domestic abuse took place, I am not able to accept that submission.

[54]Mr Crosthwaite based his submission on a passage from the judgment of Baroness Hale in Re E where Baroness Hale observed as follows in respect of the question of factual disputes arising in the context of Art 13(b) (emphasis added):

“There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.”

Mr Crosthwaite submits that if the position in this case is that no protective measures are possible if the mother establishes a defence under Art 13(b), then this court finds itself in the position contemplated the last sentence of the foregoing passage from the judgment of Baroness Hale and, accordingly, must hold a full finding of fact hearing.

[55]However, it is clear from the decision in Re E that the court doing “the best it can to resolve the disputed issues” in the context of Art 13(b) need not extend to a fully contested finding of fact hearing where there are other means of objectively verifying the truth or otherwise of the allegations in issue. In this respect, Baroness Hale observed later in Re E at [52] that (emphasis added):

“It is now recognised that violence and abuse between parents may constitute a grave risk to the children. 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.”

Baroness Hale thus made clear that that a finding of fact hearing is not the only way in which disputed facts can be interrogated and determined in the context of Art 13(b) of the Convention.

[56]Indeed, in Re S, andwithin the very context that arises for consideration in this case, namely whether a mother’s fear and anxiety about returning has an objectively verifiable basis in reality, the Supreme Court was satisfied that an evaluation of the documentary evidence before the court provided sufficient foundation for the court to conclude that the risk to the mother’s mental health was based in an objective reality of domestic abuse and was real. In this context, I note the following observation of Lord Wilson in Re S at [7]:

“One of the unfortunate features of the proceedings in the Court of Appeal seems to this court to have been the erroneous assumption that the mother’s allegations against the father were in effect entirely disputed and thus that, in the absence of oral evidence, an assessment of their truth had lain beyond the judge’s reach. In fact, however, the careful study by Charles J of the witness statements, and in particular of about 300 text messages and emails passing between the parents from January until June 2011, which were attached to them, revealed that a number of important allegations made by the mother against the father were admitted or at least, in light of what he had said in the texts and emails, could not, as his counsel had conceded, realistically be denied.”

[57]Within the foregoing context, I am satisfied that given the nature and extent of the documentary evidence before the court, and in particular the extensive written communication between the parents on social media, the contents of which is not disputed by the father, there is sufficient evidence to determine the question of whether or not the mother’s fear and anxiety is based on an objective reality of domestic violence perpetrated by the father.

[58]In my judgment, the evidence in this case demonstrates that a number of the allegations made by the mother have been admitted, or have not been disputed, by the father, namely: i) That on occasion he put the mother down, humiliated her, said horrible things to her and said she should die; ii) That he was regularly physically violent to the mother by hitting her and that he verbally abused her on a very regular basis; iii) That on 10 October 2015 the father called the mother a “bitch”; iv) That he made threats to the mother in December 2015 and January 2016 prior to his arrival in England; v) That on 7 July 2016 the father stated to the mother that “I will fuck you”; vi) That on 30 August 2016 the father has said to the mother that she was “fucking lazy” and “fuck you, you will see”.

[59]Within the context of the foregoing admissions, I am also satisfied that the following specific matters, whilst not addressed specifically in the WhatsApp communications, are not matters which the father can continue realistically to deny when they are considered in light of what the father concedes during the course of the WhatsApp communications and other corroborating evidence: i) That on one occasion the father gave the mother a black eye by throwing a toy at her. The black eye was witnessed by the maternal grandmother and conceded by the father. The father goes as far as conceding that he threw the toy “in the air”. The father conceded during the WhatsApp exchanges that on occasion he had been physically violent to the mother. ii) That on one occasion the father came home drunk at 4.00am and made her write down on a piece of paper that she had been cheating on him and would give him L and thereafter the father made her leave the flat before calling her back and stating he would give her “one more chance” and that she was never to shame him again. The father concedes in his statement that on this occasion he “felt that E was treating me cold” and that the mother left the flat and that he requested that she return. The father conceded during the WhatsApp exchanges that on occasion he verbally abused and humiliated the mother. iii) That the father called the mother names over the telephone, including “prostitute”, “slag” and “bitch”. The maternal grandmother states that she overheard the father shouting at the mother. The maternal grandmother states, and the father admits in his statement, that when the maternal grandmother took the father to task about this conversation he called her a “gypsy”. The WhatsApp messages demonstrate that the father called the mother a “bitch” on WhatsApp on at least one occasion. The father conceded during the WhatsApp exchanges that on occasion he verbally abused the mother. iv) That on 7 July 2016 the father threatened to kill the mother if he did not get L and swore on his mother’s life during a Skype session. The WhatsApp messages show that on that date the father threatened the mother after she had closed the Skype window on him by stating“If u close my face again I will fuck u”. The WhatsApp message also contains a contemporaneous allegation by the mother that the father had threatened to kill her on 7 July 2016. The father conceded during the WhatsApp exchanges that he had on one occasion said the mother should die. v) That between 14 September 2016 and 16 September 2016 the mother received a series of telephone calls and Skype communications and WhatsApp messages in which the father variously called her “a fucking bastard” and a “motherfucker” and threatened to “fuck her” and that she would “see what happens”. Such conduct is entirely consistent with the conduct that the father conceded in the WhatsApp exchanges and the conduct set out in this paragraph.

[60]The question of the allegations made by the mother of sexual violence by the father is more difficult. Within the context of the foregoing matters it is plainly open to the court to accept that in circumstances where the mother is demonstrably telling the truth about a significant degree of verbal and physical violence over an extended period of time, she is also telling the truth about sexual violence. I do however accept that there appears to be some limited evidence of incidents of exaggeration on the part of the mother, the most significant of which concerns the photograph taken on 4 July 2015. Whilst one must be cautious in respect of a single moment caught in time, the photograph does appear incongruous when viewed against the mother’s assertion that, only hours earlier, she had endured what “was the most horrifying night of my entire life and I cannot explain the fear that I felt that I would not survive”. Within this context, I note further that during the WhatsApp messages there is an absence of assertion by the mother of sexual violence, nor is there any admission by the father in respect of the same. I have taken this evidence into account in considering what conclusions can properly be drawn from the documentary evidence available to the court. Within this context, I have found myself unable to reach a definitive conclusion on the question of the allegations of sexual violence on the evidence currently available.

[61]Finally, I am not able to accept Mr Crosthwaite’s submission that the fact that the mother stayed in contact with the father undermines the credibility of her allegations. A parent who is the victim of domestic violence will, where the parties share a child or children, be under some pressure to maintain contact with the abusive parent for the benefit of a child. The fact that a parent does so in that context is not it seems to me, without more, evidence that any allegations they may make are untrue or exaggerated.

[62]Within the foregoing context, and ever mindful of the limitations of the summary nature of the process with which the court is engaged when evaluating the evidence, I am satisfied on the evidence before the court that this is a case where the mother’s case is based on an objective, verifiable reality of significant levels of verbal and physical domestic abuse against the mother by the father in Turkey over an extended period of time. I make clear that in reaching this conclusion I have not taken account of Dr Airey’s diagnosis of post-traumatic stress disorder when concluding that the mother suffered domestic abuse, as there is a clear risk of circular reasoning if the court were to adopt that course. However, as I set out below, my conclusions as to the existence of an objectively verifiable history of domestic violence perpetrated by the father are plainly relevant to the credibility of that diagnosis when the court comes to consider the impact on the mother’s mental health of a return to Turkey.

[63]Turning to the question of the impact on the mother of returning to Turkey with L, I accept the expert evidence of Dr Airey that the mother suffers from post-traumatic stress disorder. Having interviewed and examined the mother, Dr Airey considered that her clinical presentation was genuine and that, deploying his considerable experience of clinical examination and his considerable experience of the assessment of post-traumatic stress disorder, including experience in identifying cases in which the patient is fabricating the disorder, what he was seeing in the mother was post-traumatic stress disorder rather than malingering to gain an advantage in ongoing proceedings. He considered that the mother presented with significant symptoms of both anxiety and depression and that her presentation was entirely compatible with the presence of PTSD.

[64]As I have already noted, Dr Airey was careful to recognise throughout his report and his oral evidence that matters of fact are for the court and that should the court conclude that the mother had fabricated her account of domestic abuse he would have to revisit his conclusions. However, as set out above, I am satisfied that the mother did experience domestic violence at the hands of the father in Turkey in the manner I have set out. I accept that had the court not been in a position to come to the conclusions set out in the foregoing paragraphs regarding the history of this matter, the handling of Dr Airey’s diagnosis would have presented some forensic difficulties within the context of court proceedings. Whilst assuming the truth of allegations of domestic violence for the purposes of evaluating the efficacy of protective measures in the manner approved in Re E presents little difficulty, assuming the truth of such allegations for the purposes of evaluating the weight to be attached to an expert report would be fraught with difficulty. However, in this case, and before turning to evaluate the credibility of the expert evidence, the court has been in a position to reach certain factual conclusions on the evidence available to the court. Whilst, as I have already stated, I was careful not to take into account Dr Airey’s diagnosis in reaching my conclusions as to the history of this matter, I am satisfied that those conclusions are capable of reinforcing and do reinforce the diagnosis of post-traumatic stress disorder made by Dr Airey.

[65]I am also able to accept the evidence of Dr Airey that the mother has a firmly established belief system that were she to return to Turkey her life would be in grave danger and that the mother’s belief system heightens the symptoms she has consequent upon her PTSD. I accept Dr Airey’s evidence that this has a significant impact on her mental health and that her belief system taken in the context of her diagnosed post-traumatic stress disorder means that returning to Turkey with L will cause her mental health to deteriorate significantly. Having considered the evidence before the court, I see no reason to doubt Dr Airey’s conclusion that the mother will not come to believe that it will be safe for her to return to Turkey. These conclusions are reinforced by evidence that indicates the mother has regularly spoken of her fears to a variety of professionals since her return to this jurisdiction well ahead of the issue of proceedings and well ahead of seeing Dr Airey and has spoken of them to the father in the context of the objective, verifiable reality of her time with him.

[66]Within the context of Dr Airey’s diagnosis of post-traumatic stress disorder and his conclusions regarding the impact of a return to Turkey given the impact of the mother’s belief system, which I am satisfied have their root in an objectively verifiable reality, I am satisfied that the adverse impact on the mother’s mental health of having to return to the jurisdiction of Turkey with L would place L in an intolerable situation.

[67]The father’s case is clear that upon any return to Turkey the mother would be the primary carer for L. L is still breastfeeding. The father does not advance himself as the primary carer for L, even as an alternative to the mother returning with L. In the circumstances, L would be fully exposed to the adverse impact on the mother’s mental health of returning to the jurisdiction of Turkey and would experience first-hand the likely significant deterioration in the mother’s mental health consequent thereon. I am satisfied that this would be more emotionally harmful for L than for other children of her age given her very particular needs as evidenced by the paediatric and speech and language therapy evidence before the court. L has very specific needs in terms of her emotional development and in the development of her language and communication skills. In my judgment, those identified needs would make it even more difficult for L to manage emotionally in the care of a mother whose own emotional equilibrium had been very significantly disrupted by a return to Turkey. This difficulty would be exacerbated by the fact that the consequences of that situation for L would have to be addressed in what is now, for her, an unfamiliar environment.

[68]In the circumstances, and for the reasons I have set out, I am satisfied that the evidence before the court demonstrates that L would be placed in an intolerable situation for the purposes of Art 13(b) were the court to order that she return to the jurisdiction of Turkey with her mother. I am satisfied that this is the case based on the objectively verifiable reality of the mother’s experience of domestic abuse at the hands of the father whilst in Turkey and the consequences of that objectively verifiable reality for the mother’s mental health were the court to order a return. In these circumstances, it is not necessary for me to go on to consider the question of mother's subjective perception.

[69]Having considered the issue carefully, I am satisfied that it is not possible in this case to put in place protective measures to address the intolerable situation that I have identified in this case. Whilst the father offers no particulars of the protective measures he proposes beyond a claim that he benefits from private medical insurance, I in any event accept the evidence of Dr Airey that it is not possible to put in place in Turkey measures to protect against the consequences for L of a deterioration in the mother’s mental health in circumstances where the very act of ordering a return will lead to precisely the serious deterioration in the mother’s mental health that Dr Airey warns against, and would thereafter leave the mother in the very environment which is least conducive to the successful treatment of her mental health issues and the most likely to lead to her continued decline in this regard with its concomitant continuing impact on L.

Acquiescence

[70]Given my conclusions in respect to the question of Art 13(b), it is not necessary for me to consider the position in respect of acquiescence in detail. However, I would observe that whilst it is arguable that certain aspects of the WhatsApp messages indicate that the father’s subjective intention was that L would remain in England, on balance I would have found it difficult to conclude that those statements constituted a clear and unambiguous indication of the father’s subjective intention or that they clearly and unequivocally showed and led the mother to believe that the father was not asserting or going to assert his right to the summary return of the L.

[71]This is particularly the case in light of the mother’s clear statement that “I genuinely felt that, if I refused to co-operate and did not make L available for contact with Father, he would cause significant problems for me and he has always used the same threat of instigating Hague Convention proceedings against me”. Within this context, it is apparent that the mother was aware that the father’s position in respect of proceedings for the summary return of L was expressed regularly to be contingent on her continuing to facilitate contact. Within this context, it would have been difficult for the court to conclude that the father acquiesced to L remaining in the jurisdiction, or that the mother believed that this was the case such that it would have been unjust to order a return, having regard to the need to demonstrate a clear and unambiguous position in this regard. However, in light of my conclusions with respect to Art 13(b) I say no more about this.

Discretion

[72]Having reached the conclusions that I have in relation to Art 13(b) on the basis of the evidence before the court, and having concluded that no protective measures can be put in place to mitigate the intolerable situation I have identified, I am satisfied that it is appropriate for the court to exercise its discretion not to order L’s return to the jurisdiction of Turkey. It would plainly not be right to place L into the intolerable situation that the court has identified by ordering her return.

CONCLUSION

[73]In conclusion, I am satisfied that the defence under Art 13(b) is made out on the evidence before the court. Within this context, I am further satisfied that I should exercise my discretion not to order the return of L to the jurisdiction of Turkey. In the circumstances, I dismiss the father’s application for summary return. I will invite counsel to draft an order accordingly.

[74]It is important to emphasise that the task of this court at this point in time is to determine whether L should be returned to the jurisdiction of her habitual residence in order for issues concerning her welfare to be determined or whether those welfare issues should be determined in this jurisdiction. My decision not to order the return of L to Turkey does not represent any form of final pronouncement regarding the remaining issues between her parents as to her future welfare, only a pronouncement as to which jurisdiction will now decide those welfare issue.

[75]That is my judgment.