“Pulled the bathroom rug from under my feet. Because I forgot to turn the shower heat back to the bath setting and he got water on the floor.” b) January 2023: “Telling me off for ages about spilling water on the kitchen surface and accusing me of doing in (sic) on purpose to annoy him. Calling me asshole and cold. Says he can’t live like this” c) First two weeks in August 2023: “Constant arguing and complaining about everything and other people. Pushed me twice in front of the children.” d) January 2024: “Being rough with me in the bathroom, and then blocking me in the kitchen complaining at me and when I asked to leave the room he wouldn’t let me leave. He wouldn’t let me leave for ages until I hugged him”. e) January 2024: “Throwing a plastic water bottle in my direction. I can’t remember why he was annoyed at that moment.” f) January 2024: “saying he will smash something and then pinched me through my coat because I didn’t agree with him.”
“The final section, ‘what would you like to happen next’, T did not initially give an answer to. I asked her ‘what about going back to Poland?’’ and [T] shook her head very vigorously and screwed her face up in distaste. I suggested it looked like she really did not want to go back to Poland, and she nodded that I was correct. I asked if this was because of the shouting she had written about, and she nodded. I put this into a sentence for her and asked how she would feel if she had to go back. [T] managed to say which ‘sad’, which again I formed into a sentence which I which I checked with her.”
“Dear Judge What would you like to stay the same? Mum looking after me and living in England. What needs to change? Daddy to stop shouting at Mummy, me and [H]. What would you like to happen next? I really don’t want to go back to Poland because of Daddy shouting. I would feel sad if I had to go back to Poland. Is there anything else you would like to say? No.”
“The court may wish to give regard to her concerns that the family home is within a building which [the Father]’s family owns and to which he would have access even if no longer resident. I would recommend that [the Father] is asked to provide funding to [the Mother] to source alternative accommodation for herself and the children in the event of a return. I further recommend that the children remain in the care of their mother and that there are no spending time arrangements between the children and their father until a risk assessment is undertaken by the Polish authorities, to determine whether this is safe. I would invite the father to provide the court with an undertaking that he will not pressure [the Mother] to agree informal arrangements prior to a court decision.”
“• [The Mother] was presenting with severe depression and anxiety at the time of the assessment. [The Mother] said she has no history of mental health problems but attributed her current difficulties to the stress within her relationship with [the Father] and her anxiety about possibly having to return to Poland. • There was evidence of symptoms of post-traumatic stress but she did not meet all of the criteria for a formal diagnosis of post-traumatic stress disorder (PTSD). The Mother’s] symptoms are most likely to be explained by her diagnosis of severe depression and anxiety following acute stress and unhappiness in her relationship. • [The Mother] reported unwanted thoughts and memories of her relationship with [the Father]and these appeared to be ruminative thoughts as part of her depression and anxiety following her unhappiness and acute stress in her relationship…. • There was evidence of avoidant coping and [the Mother] appeared emotionally detached, which is likely to highlight how overwhelmed she felt in the relationship due to the stress she felt she was experiencing. Whilst there are symptoms of trauma from her prolonged experience of stress and alleged abuse in her relationship, she did not meet all the criteria for a diagnosis of PTSD during the formal assessment and many of her symptoms can be understood within her diagnosis of depression. • [The Mother] presented with an unusual manner and characteristics. She was somewhat uncomfortable with social interaction and she appeared withdrawn and detached. • [The Mother] presented with thought disorder with incoherence of speech, disorganised thinking, a lack of clarity, providing vague and unrelated responses, confusion in her discussion, poor recall and poverty of speech. [The Mother] does not present with a mental illness such as schizophrenia, psychotic disorder or mania but it is likely that her thought disorder is associated with her acute level of stress and severe depression • [The Mother] reported sleep disturbance due to excessive worry and this is likely to impact further upon her disorganised thinking and thought disorder. • [The Mother] reported persistent depressed mood, loss of interest, sleep disturbance due to excessive worry, increased agitation, tiredness and low energy, loss of motivation and impaired ability to think and concentrate. [The Mother’s] symptoms are indicative of a severe depressive episode. • [The Mother] presented with symptoms of excessive worry and anxiety, difficulties controlling her worry, restlessness, becoming easily fatigued and irritability.”
“3.1 Overall, [the Mother] presents with severe depression and anxiety and symptoms of PTSD. [the Mother] presented with thought disorder and this is likely to be best understood within her diagnosis of severe depression. Whilst I cannot comment on matters of fact, it appears that the relationship has caused [the Mother] persistent stress, unhappiness and led to severe depression. If [the Mother] were to return, it is my opinion that her depression and anxiety will persist and potentially worsen, as will her symptoms of traumatic stress. There is no clear evidence of a risk to self, associated with her depression but it is my opinion that her mental health is highly likely to deteriorate further if she had to return.” (Emphasis added)
“3.12 I cannot comment on matters relating to the children’s experiences or the impact of returning to Poland upon their wellbeing. With regards to [the Mother], it is concluded that her mental health is highly likely to deteriorate further if she were to return. In my opinion, this is most likely to occur in the circumstance that [the Mother] is having to rely upon [the Father] and the paternal grandparents, or if she were unable to ensure adequate distance from [the Father] to be able to process her experience of the relationship and associated depression, anxiety and trauma symptoms. A return to the home that she shared with the father is likely to impact upon her mental health as will any regular ongoing contact with [the Father]. In order to minimise the impact on her mental health, she is likely to require support outside of the paternal family, a separate living space and independent life away from [the Father] so she can process and cope with the end of the relationship and the impact she feels the relationship has had upon her. [The Mother] said she is isolated in Poland and has no other support and therefore feels she cannot return. It is my opinion that [the Mother’s] mental health difficulties will make it difficult for her to integrate and establish an independent life in Poland. [The Mother] is currently heavily reliant upon her family due to her current mental health difficulties.”
“I recommend that [the Mother] access cognitive behaviour therapy (CBT) to address her depression and anxiety. This approach may be integrated with trauma focused CBT in order to address her symptoms of trauma. She may benefit from pharmacological treatment alongside therapy. I would recommend between twelve and sixteen sessions of integrated therapy. [The Mother] will be able to seek a referral to psychological therapies from her GP or access this work privately. Treatment may alleviate [the Mother’s] symptoms and provide her with the therapeutic space to process her experiences within her relationship, to better manage her symptoms and to increase her coping strategies. Therapy is likely to assist [the Mother] in terms of her ability to cope better with any future contact and interactions with the father as separated co-parents.”
“Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,”
“[14] … This objective is, of course, also for the benefit of children generally: the aim of the Convention is as much to deter people from wrongfully abducting children as it is to serve the best interests of the children who have been abducted. But it also aims to serve the best interests of the individual child. It does so by making certain rebuttable assumptions about what will best achieve this: see the Explanatory Report of Professor Perez-Vera, at para 25.”
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.”
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – …b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”
“In the light of these passages we must make clear the effect of what this court said in Re E (Children) (Abduction: Custody Appeal). 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.”
“…unless the court properly analyses the nature and severity of the potential risk which it is said will arise if the child is returned to the requesting State, the court will not be in a position properly to assess whether the available protective measures will sufficiently address or ameliorate that risk such that the grave risk required by Article 13(b) will not have been established. As set out in Re E, at [36], the question the court is considering is "how the child can be protected against the risk" (my emphasis). The whole analysis is contextual and forms part of the court's process of reasoning, as referred to by me in Re A, at [97], adopting this expression from Re S (A Child) (Abduction: Rights of Custody)[2012] 2 AC 257 .”
“Protective measures may be available and readily accessible in the state of habitual residence of the child or, in some cases, may need to be put in place in advance of the return of the child. In the latter case, specific protective measures should only be put in place where necessary strictly and directly to address the grave risk. They are not to be imposed as a matter of course and should be of a time-limited nature that ends when the state of habitual residence of the child is able to determine”
“Finally, it is well established that courts should accept that, unless the contrary is proved, the administrative, judicial and social service authorities of the requesting State are equally as adept in protecting children as they are in the requested State (see for example Re H (Abduction: Grave Risk)[2003] EWCA Civ 355 ,[2003] 2 FLR 141 , Re M (Abduction: Intolerable Situation)[2000] 1 FLR 930 and Re L(Abduction: Pending Criminal Proceedings)[1999] 1 FLR 433 ). In this context I note that Lowe et al observe in International Movement of Children: Law, Practice and Procedure (Family Law, 2nd edn), at para 24.55 that: 'Although, as has been said, it is generally assumed that the authorities of the requesting State can adequately protect the child, if it can be shown that they cannot, or are incapable of or, even unwilling to, offer that protection, then an Art 13(b) case may well succeed. It seems evident, however, that it is hard to establish a grave risk of harm based on speculation as opposed to proven inadequacies in the particular cases.”
“…in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare”
“The exercise of the discretion under the Convention is acutely case-specific within a framework of policy and welfare considerations. In reaching a decision, the court will consider the weight to be attached to all relevant factors, including: the desirability of a swift restorative return of abducted children; the benefits of decisions about children being made in their home country; comity between member states; deterrence of abduction generally; the reasons why the court has a discretion in the individual case; and considerations relating to the child's welfare.”
“i) It is appropriate to break down the exercise into two parts – the "gateway stage" and the discretion stage (§18); ii) the gateway stage has two parts in that it has to be established that (a) the child objects to being returned and (b) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views (§18); the gateway stage represents a fairly low threshold (§70); iii) the gateway stage is confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Sub-tests and technicality of all sorts should be avoided (§69); iv) whether a child objects to being returned is a matter of fact, as is his or her age (§35); v) the degree of maturity that the child has is also a question of fact (§35); it is now recognised that children as young as 6 can be of sufficient maturity to have their objections taken into account (§67); vi) the child's views have to amount to objections before they can give rise to an Article 13 exception (§38); there must be more than a mere preference expressed by the child (§39); vii) the child has to object to returning to the country of habitual residence rather than to returning to particular circumstances in that country, although it has been clear from early on that there may be difficulty in separating out the two sorts of objection (§42); viii) the objection must be to returning to the country, although it may be difficult to extricate that from a return to the parent; the wording of article 13 does not inhibit a court from considering the objections of a child to returning to a parent (§44); ix) the fact that a child objects to being returned does not determine the application (§46); the child's views are not determinative of the application or even presumptively so (§63); x) The child who has suffered an abduction will very often have developed wishes and feelings to remain in the bubble of respite that the abducting parent will have created, however fragile the bubble may be, but the expression of those wishes and feelings cannot be said to amount to an objection unless there is a strength, a conviction and a rationality that satisfies the proper interpretation of the Article (§54); xi) an over-prescriptive or over-intellectualised approach to what, if it is to work with proper despatch, has got to be a straightforward and robust process is to be discouraged (§77).”
“In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances.”