“My lawyer was supposed to be here. I don’t know her name. I can’t read English.”
“She’s her sister, I’m not going to stop it”
"The law in respect of the defence of harm or intolerability under Art 13(b) was examined and clarified by the Supreme Court in Re E (Children) (Child 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 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, as in this case, Art 13(b) of BIIa applies, the court cannot refuse to return a child on the basis of Art 13(b) of the Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return). 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.
"In order to decide whether this test was satisfied, it was in my opinion necessary for the judge to examine in concrete terms the situation that would actually face GP on her return to Italy. What would happen when she and her mother stepped off the plane? Would her mother be arrested? Where would they go, and what would they live on?... 62. The judge had no answer to these questions, although he was rightly satisfied that the transition for GP would inevitably be uncomfortable. He said that the mother would have to bear some of the costs, but did not explore at all what those costs would be, or how in practice she would be able to meet them, both in the period immediately after their arrival, and in the short to medium term while GP's custody and welfare were under consideration by the Italian court. In my opinion these matters all needed careful examination, and although it was not incumbent on the judge to set out the evidence in detail, it was necessary for him to state the conclusions he had reached about how GP could reasonably expect to be accommodated, maintained and educated upon her return to Italy, and what would happen to her if the mother was imprisoned."
"I would also note that the measures being considered are, potentially, anything which might impact on the matters relied upon in support of the Article 13(b) defence and, for example, can include general features of the home state such as access to courts and other state services. The expression "protective measures" is a broad concept and is not confined to specific measures such as the father proposed in this case. It can include, as I have said, any "measure" which might address the risk being advanced by the respondent, including "relying on the courts of the requesting state"
"…Having regard to the principle of comity, it is well established that in judging whether there is a grave risk following return for the purposes of Art 13(b) of the Hague Convention, the court should accept that, unless the contrary is proved, the administrative, judicial and social services in the requesting State are as adept as protecting children as they are in the requested State (see 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 ). As regards a return to a placement in care in the requesting State, where the requesting State has adequate procedures for protecting the child, and accepting that each case must turn on its own facts, it is unlikely that a parent will be able to successfully oppose a return on the basis that the child is being returned into temporary public care pending the courts making a substantive welfare decision (see Re M (Abduction: Intolerable Situation)[2000] 1 FLR 930 and Re S (Abduction: Return to Care)[1999] 1 FLR 843 ). Once again however, each case will turn on its own facts."
"…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 measure, the court may have no option but to do the best it can to resolve the disputed issues…"