AB (The Child Abduction and Custody Act 1985), Re [2024] EWHC 3626 (Fam)

IMPORTANT NOTICEAny published version of the judgment must strictly preserve the anonymity of the children and members of their family. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.[2024] EWHC 3626 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
THE CHILD ABDUCTION AND CUSTODY ACT 1985
(INCORPORATING THE 1980 HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION)
THE CHILD: AB (aged 14 ½)
The Father ApplicantThe Mother RespondentCharlotte Baker (counsel) for Applicant FatherCliona Papazian (counsel) for Respondent MotherJUDGMENTMr Stonor KC sitting as a Deputy High Court JudgeHearing: 03 and 04 December 2024Judgment handed down: 23 December 2024
[1]By an application dated 13 September 2024, the father (F) seeks a return order under the 1980 Hague Convention in relation to his daughter, AB, who is aged 14 ½. That application is opposed by AB’s mother (M).[2]AB and her parents are all British Nationals. Since late 2019, AB has been living with F and her step-mother and two younger paternal half-siblings in the Netherlands. In July 2024, in accordance with established contact arrangements, AB came to spend time with M, her step-father and two younger maternal half-siblings in England. On 03 August 2024, M sent a text message to F informing him that she would not be returning AB to his care “until such time that the court have considered matters”. M then made an application to her local Family Court which was dismissed on the basis that the court did not have jurisdiction.[3]The parties agree that, as at 03 August 2024, AB was habitually resident in the Netherlands and F was exercising rights of custody in relation to AB; and that accordingly, AB’s retention was wrongful pursuant to Article 3 of the 1980 Convention. These agreed matters are amply supported by the evidence before the court.[4]In her Answer dated 25 September 2024, M had indicated that she intended to defend F’s application for summary return on three bases: Article 13(a) (“consent / acquiescence”); Article 13(b) (“Harm / Intolerable Situation”) and Article 13 (“Child’s Objections”). The Article 13(a) defence was never in fact pursued. On the evidence before the court, there was no basis for it ever having been raised.[5]Most of the evidence and argument have focused on the “Child’s Objections” defence. F sensibly concedes that “the gateway” has been satisfied in that AB objects to being returned to the Netherlands and has attained an age and degree of maturity at which it is appropriate for the court to take account of her views. He contends that the court should nonetheless exercise its discretion and make a return order.(1) Go against AB’s clearly stated wishes and would leave her feeling disempowered.(2) Fail to accord due weight to AB’s autonomy as a 14 ½ year old young person.a. On all accounts, there have been considerable tensions particularly since around the Summer of 2023.b. On AB’s account (which is disputed by F) she has at times been exposed to frightening behaviours by F. (4) Require AB to attend a school where she had previously been unhappy.[7]Whilst readily acknowledging that a return order will involve challenges for AB, F contends that the asserted harm / intolerability, taken at its highest, falls well short of the threshold envisaged in article 13. Furthermore, he proposes a range of protective measures, most particularly the proactive resumption of the therapeutic input which was being provided to AB in the Netherlands but which was interrupted by AB’s retention in the UK.(1) Statements from the parties with exhibits.(2) A report from Dr C, clinical child psychologist and family therapist in the Netherlands, dated 31 January 2024.(3) A Child Abduction Report from Emma Huntington, CAFCASS High Court Team, dated 26 November 2024.(4) A transcript of a police interview given by AB in England on 12 October 2024, in accordance with ‘Achieving Best Evidence’ guidelines (the “ABE interview”).(5) Family Court judgments given in previous proceedings in England.[9]I heard oral evidence from Ms Huntington, first in relation to M’s preliminary application (which I will turn to in due course) and then in relation to F’s substantive application for a return order. I am grateful to counsel for their detailed skeleton arguments and for their oral submissions in respect of the preliminary application and the substantive application. After taking time to reflect, I announced my decision orally, with brief reasons, on the afternoon of 05 December 2024. I subsequently handed down this written judgment.[10]Although this hearing involves a summary process, it is necessary to set out the history in some detail.[11]M and F met in around 2002 and were married in 2006. AB was born in 2010. M and F separated in early 2012 and were divorced in 2013. AB remained living with M. From 2012 through to 2019, AB was the subject of intermittent social work involvement. The level of concern for AB’s welfare is reflected by the fact that she was the subject of a child protection plan under the category of ‘emotional harm’ in 2013 and again in 2018.[12]From 2013, AB was also the subject of multiple sets of private law proceedings. Within those proceedings, the court variously directed reports under both s.7 and s.37 Children Act 1989. M had made allegations that AB had been sexually abused by F. Those allegations were not proven and, as I understand it on the evidence available, were viewed as part of a pattern of alienating behaviours by M.[6]AB has been subject to court proceedings for much of her life. The parties separated in 2012 and divorced in May 2013. Some two months later father commenced court proceedings for a shared residence order, as it was then, and then the contact arrangements broke down. In those proceedings there were wide ranging investigations made, including ones into allegations against father which were not substantiated. The proceedings terminated in February 2015 with an order that AB should live with her mother and have contact with her father. But it is clear that in those proceedings the decision was very finely balanced and it must have been clear to all, but particularly to mother, that there were some concerns about her behaviour and parenting. . . .[14]The concern is that AB is suffering emotional harm and is at risk of suffering further emotional harm because of damage being done to her relationship with father, particularly with her assessment of father’s behaviour and character. As I have said, she has a strong relationship with him, but over recent times she has been saying that he tells lies. . . .[15]. . . The problem is that, as [the psychologist] puts it in her report, AB appears to be developing a narrative that father is untrustworthy, although it appears to be imposed from the views of others rather than arising from her own lived experience with her father. . . .[24]Having considered all the evidence that has been filed and the evidence given in court, I am satisfied on the balance of probabilities, which is the appropriate standard in this case, that AB has suffered emotional harm within her maternal home and family and that this has damaged her relationship with father. In the long run, if it continues it will damage her ability to form and understand long lasting relationships. I am satisfied that mother has not done this deliberately, in that she has not said anything to AB, but that her long term aim has been to disrupt and damage the relationship, possibly to total destruction, by denigrating father both herself and her family. . . .[26]I found mother to be, to some extent, evasive. In answering questions she said she accepted the opinions of experts or the findings from the previous proceedings, but nothing more. I think at times she has been unable to prioritise what is best for AB, or that what AB says she wants, or what she, mother, thinks AB wants, bearing in mind she is quite capable of manipulating AB to say what she wants her to say. On the other hand I found father to be straightforward and consistent. The word solid comes to mind and I mean that in a complimentary sense, that he is clear in what is right, that he considers decisions carefully and then implements them, which is what children need.[14]Because of unexpected changes in his employment, F subsequently applied for permission to remove AB to live with him in the Netherlands. AB was once again joined as a party with a Children’s Guardian. In October 2019, the same Designated Family Judge granted F’s application and approved arrangements which included extensive holiday contact with M in the UK. In her judgment (between paras 14 and 18), the Designated Family Judge noted that whilst M had insisted that, with the assistance of therapy, she had made positive changes, she (the learned judge) was “very concerned” about some of M’s behaviours during the case and the pressures that appeared to have been put on AB. At para 27 of her judgment, the Designated Family Judge expressed herself to be satisfied that F could meet AB’s emotional and educational needs but, conversely, that she was not satisfied that those needs could be met by M.[15]AB moved with F to the Netherlands in late 2019, when she was aged 9 ½. She has had regular and extensive contact with M in the UK. The evidence indicates that, in all the circumstances, AB settled reasonably well in the Netherlands. That is not to say that there were not difficulties at times. Given the emotional harm that AB had suffered in the past, together with the inevitable challenges that such a move would involve for a child of her age, that is not at all surprising. Nor is it surprising that, following periods of contact in the UK, AB would generally take a week or two to re-adjust to like back in the Netherlands.[16]Since 2020, AB has at times received what seems to have been relatively “light touch” therapeutic support organised by F. Concerns for AB’s welfare increased over the course of 2023. On F's case, the key turning point came when AB was given a smart phone and began having frequent and often lengthy (on one occasion around four hours) conversations with M. For her part, M denies any wrongdoing in relation to her own communications with AB and has produced a selection of text exchanges which show her responding responsibly in 2023 and the early part of 2024 when AB variously said that she wanted to live with M, wanted M to bring court proceedings, was not going to go to school and was going to run away. There is agreement that AB struggled with the change from primary to secondary school in Autumn 2023.[17]F once again sought the assistance of Dr C and there is a report from her dated 31 January 2024. She notes “The reason for signing up is that AB is still suffering from the separation of her parents. At home, there are more and more fights and AB regularly throws tantrums and has outbursts of anger. In addition, the father is worried because AB is not part of the group at school and seems to be bullied.”[18]Dr C’s therapeutic intervention involved AB’s family and school in the Netherlands, M and AB herself. M told Dr C that she also sees outbursts of anger in AB. The picture emerges of a troubled young person with all of the relevant adults expressing their concerns for her and their desire to make things better for her.[19]Dr C noted that “AB is very concerned with the story of why she lives with her father in the Netherlands. She feels like her parents aren’t telling the truth.” Later in her report, Dr C says: “AB feels like she stands between the two families and doesn’t really belong to either family. She loves her father and her mother. She notices that her father and mother are still in conflict with each other. It is difficult for her when there is influence from her parent or when the other parent is spoken of negatively. This affects her self-image as she is a child of her father and her mother. AB’s outbursts of anger at home can function as a cry for attention to her unclear feelings about this. She is jealous of her half-sisters and siblings because they don’t go through the same thing as her as they grow up in a family. Acknowledging the situation and her feelings about this situation is important. Underneath her anger is sadness and frustration at the ignorance of why she now lives with her father. . . .”.[20]In April 2024, following input from M and F, a “life-story” booklet entitled “The story of AB” was shared with AB. It traces her life and includes pictures of her parents and half-siblings. As to what appears to be the burning issue for AB, why she came to live with her father, the booklet says only this:
“In 2018, the social worker and judge decided that AB should live with her father because this had to do with the fact that mom had said things about father that had influence on AB.”
[21]This therapeutic intervention was “work in progress”. It is highly regrettable that it had to be put on hold following the wrongful retention of AB in August 2024.[22]AB came to the UK as planned in July 2024. M says that over the days and weeks that followed, AB told her about F’s harmful behaviours towards her, about how unhappy she was in the Netherlands, about how she did not want to go back, and that if she was required to do so she would rather “run away or die”.[23]On AB’s own account, the harmful behaviours complained of generally consisted of examples where F had responded angrily to AB’s own misbehaviours or that F and/or her step-mother had treated her in ways which she considered to be less favourable to the way in which her younger paternal half-siblings were treated. AB said that there was one occasion when, following an argument over homework, F had pinned her to the floor to stop her from drawing in chalk on her step-mother. On another occasion, disputed by F, AB says that in anger F had punched a wall (or door) close to her head. Plainly, if AB is correct, that would have been a frightening episode for her. On all the evidence, if it did happen, it was an isolated occasion and a behaviour which was out of character for F.[24]On 19 July 2024, AB came to make similar comments at a swimming pool to Ms Y (a swimming teacher and longstanding friend of M’s). Then on 23 July 2024, at the same swimming pool, apparently following some sort of referral made by Ms Y, AB made similar comments in response to questioning from Ms Z, “an independent social work consultant”.[25]On 01 August 2024, AB was visited by a social worker and police officer. Ms Y took notes of the meeting. The social worker did not consider that AB’s account met the threshold for statutory intervention. Her note includes the following:
“It is my assessment that whilst I understand AB may not be happy with dad or his parenting, the adults – her Mum and friend may be motivated to use the CS and police involvement to impact on them getting the outcomes they want in terms of changing living arrangements. . . .AB said her and her Mum called the previous SW a ‘cow’ and laughed unkindly about this. AB presents as spoiled and disrespectful. AB said her dad argues with her every day but could not see the impact of her own behaviour in the house, and on her siblings or step mum. AB self harms by scratching herself, has no thoughts to end own life.”
[26]On 03 August 2024, M sent a text to F:
“To keep you informed: I have made an urgent application to the court to vary the court order and I will not be returning AB to your care, until such time that the court have considered matters. This is due to AB asking to stay with me and not to return to yourself.”
[27]In the communications that followed, in a measured way, F made it clear that he did not agree to M’s request and sought a planned return of AB to his care.[28]As I have already mentioned, M made an application to her local Family Court but this was refused on 12 August 2024 on the basis that the court did not have jurisdiction.[29]F’s application was made on 13 September 2024. On 17 September 2024, AB started at a new school local to M. The evidence indicates that she has settled in fairly well though, as reported by Ms Huntington, some concerns have been expressed about her limited social interactions.[30]On 26 September 2024, directions were given by Mr Warshaw KC, sitting as a Deputy High Court Judge, which included a report from the CAFCASS High Court Team.[31]Some five days later, on 01 October 2024, AB was again questioned by Ms Z at the swimming pool. Ms Z had apparently been informed by Ms Y that there were court procedures.[32]M exhibited reports from both Ms Y and Ms Z to her statement. During submissions, I indicated that I was very troubled about the involvement of Ms Y and Ms Z. How did it come about that they were involved at all? Why was Ms Y taking notes during the joint visit from the social worker and police officer? How did it come about that Ms Y knew about court proceedings and then shared that information with Ms Z? How did it come about that Ms Z saw AB for the second time, some five days after the CAFCASS report had been directed? How did it come about that they provided reports? On the face of it, the involvement of Ms Y and Ms Z smacked of “case-building” by M and at the very least reflected a poor understanding of AB’s emotional needs. I stood the matter down to allow Ms Papazian to take instructions. With respect to Ms Papazian, who doubtless followed her instructions faithfully, nothing that I was subsequently told by her allayed my concerns.[33]On 09 October 2024, AB was seen by a police officer in preparation for her ABE interview which subsequently took place on 12 October 2024. In that interview, AB’s complaints about F’s behaviour were broadly as she had previously reported.[34]On 14 November 2024, AB met with Ms Huntington in a room at the Royal Courts of Justice. The meeting lasted around ninety minutes. At school the following week on 20 November 2024, AB told her Head of Year that she had felt listened to by Ms Huntington. AB went on to say that she missed her younger paternal half-siblings in the Netherlands. Preliminary Application[35]At the outset, M applied for an order that AB should be joined as a party to the proceedings and that this final hearing should be adjourned. At the request of the parties, I heard evidence from Ms Huntington in relation to the joinder issue, and then heard submissions from counsel. I took time to reflect before delivering an ex tempore judgment. I refused M’s application.[55]I have given this consideration much thought, particularly in light of AB’s age and the fact that she is likely to be considered a competent child, which the court would want to take into consideration when determining the granting of a return order. I explored the possibility of separate representation with AB, in order to gauge her response and she responded positively, indicating her view that it would enable her voice to be heard within the proceedings. AB was not daunted by the prospect of communicating with a solicitor, and she expressed feeling accustomed to being involved with court proceedings and talking with professionals, and she spoke of her wish to have greater involvement and understanding of the decision made in respect of her care arrangements.[56]However, it is the fact of AB’s repeated involvement in proceedings and the emotional impact on her, that contributes to my reservations in recommending joinder. AB has experienced litigation with regards to her care arrangements throughout her life and has twice before been joined to proceedings via the appointment of a 16.4 Children’s Guardian. Throughout her childhood, AB has found herself at the centre of parental dispute and she has had to negotiate several significant changes to her circumstances and care arrangements, which are likely to have contributed to her presentation as an emotionally vulnerable child. Within this context, I am concerned that to further involve AB in the dispute would outweigh any benefits that she may derive.[57]It is my view that this report serves to ensure that AB’s voice is heard within the proceedings and I respectfully suggest that the court’s understanding of the issues that need to be determined would not be greatly enhanced by joining AB as a party. Therefore, on balance I do not consider separate representation to be in AB’s best interests.[58]Additionally, in my meeting with AB, I explored her view as to whether she would wish to meet the judge. AB reported having met the judge who determined her father’s application for leave to remove her to the Netherlands and expressed having appreciated the opportunity to know who was making that decision. It may therefore be of benefit to AB, to meet with the trial judge or to receive a letter from the judge that conveys the basis upon which any decision is made.(1) Her recommendation that AB should not be separately represented had been reached on a fine balance.(2) She had made AB aware of her misgivings about her being separately represented.(3) Her strong impression was that whilst AB wanted to play a part in decisions about herself, it was much more important to AB that she understood why those decisions had been made.(4) Her view is that AB is “a really emotionally vulnerable person”. (1) She would be very worried that if AB were joined as a party she would perceive that she had a greater responsibility to say what she believes (rightly or wrongly) her mother wants her to say, and that AB would “feel the responsibility on her shoulders”. (2) She would be very worried that if AB were joined as a party, she might learn for the first time and in a non-therapeutic context about highly sensitive information relating to her past. (3) Although she stood by her view that AB’s maturity was broadly in line with her age, this had not been a straightforward assessment and she had reached this conclusion on a fine balance.[39]In her skeleton, Ms Papazian had helpfully set out the relevant law. The test is whether it is in AB’s best interests for her to be joined as a party (FPR 2010, rule 16.2) and there is assistance to be derived from Practice Guidance and case law. . . . The methods by which a child may be heard during the proceedings comprise a report from an Officer of the Cafcass High Court Team or through party status with legal representation. In most cases where it is appropriate for the child to be given an opportunity to be heard in proceedings, an interview of the child by an officer of the Cafcass High Court Team will be sufficient to ensure that the child's wishes and feelings are placed before the court . . .. In only a very few cases will party status be necessary. Where however, the respondent in the child abduction proceedings has made a protection claim, and when a claim has been made, and/or is deemed to have been made, on behalf of the child who is the subject of the application in child abduction proceedings, the child should be joined as a party absent strong countervailing reasons. Where the exception relied on is that of settlement pursuant to Art 12 of the 1980 Hague Convention, the separate point of view of the child will be particularly important. . . ...[78]First, as set out in D (A Child) Re D (A Child) (Abduction: Child’s Objection: Representation of Child Party) [2023] EWCA Civ 1047 at [57]-[58], it will only rarely be necessary for a child to be joined as a party to proceedings under the 1980 Convention. The child’s voice will typically be sufficiently heard and their views sufficiently conveyed through a report by a Cafcass Officer.[79]Secondly, the issue of whether and how a child’s voice is to be heard, including whether they are to be joined as a party, is dealt with at paragraphs 2.11(i) and 3.6 of the Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings, issued by Sir Andrew McFarlane P on 1 March 2023.[42]In essence, there were four reasons advanced by M in support of AB being joined as a party.[43]First, that this was in accordance with her wishes. However, whilst the wishes of a 14 ½ year old will always demand respect, they are of course not determinative. Furthermore, I accepted Ms Huntington’s evidence that AB’s principal concern is to understand the reasons for decisions which are made about her.[44]Second, that there are inherent difficulties in M advancing a case on behalf of AB because(1) the previous findings made against M might, wrongly, lead the court to attach less weight than it otherwise would to what AB has to say, and(2) AB may have more to say about which M is unaware. However, whilst it may be relatively unusual for previous findings to have been made, it is not at all unusual for the court to be invited by one parent to attach less weight to what a child says on the basis that they are being directly or indirectly influenced by the other parent. As for whether AB has more to say, Ms Papazian prefaced this argument by acknowledging that it was entirely speculative. I also noted that AB has had the opportunity of expressing her views not just to Ms Huntington (whose report is detailed and comprehensive) but to a social worker and police officer during the joint visit on 01 August 2024, in the ABE interview on 08 October 2024, and also to Ms Y and Ms Z. In all these discussions, the core themes of AB’s account have remained the same. There is no evidence before the court to suggest that she is withholding information or has otherwise indicated to anyone that she has “more to say”.[45]Third, that Ms Huntington’s approach is “protectionist”, that AB’s autonomy should be prioritised, and that any concerns about the sharing of sensitive information can be addressed by the court exercising its case management powers. However, considerations of autonomy and protectionism (or “welfare”) are not to be viewed in a vacuum but are case-specific. On the facts of this case, I am satisfied that AB’s voice is being heard loud and clearly, most particularly through Ms Huntington’s written and oral evidence. I am equally satisfied that AB is emotionally vulnerable and I shared Ms Huntington’s concerns about the potential for joinder to have a significantly negative impact on AB’s welfare.[46]Fourth, that joining AB now would minimise delay because a refusal to do so might subsequently be appealed by AB if she were to be informed of the refusal and then seek her own legal representation. Ms Papazian was at pains to emphasise that this argument was not based on any expressed intention by M that she would encourage AB to seek her own legal representation. I considered this to be a speculative argument. Furthermore, whilst the court should always endeavour to be pragmatic, it should not be distracted by the spectre of an appeal from making what it would otherwise consider to be the right decision for the child.[47]In considering the application, I also had regard to the overriding objective at FPR 2010, rule 1.1. I noted that an adjournment would mean that the final hearing would not take place until February 2025 at the earliest, some twenty plus weeks following F’s application. We are already in week 12.[48]In all the circumstances, I did not consider that this was one of those rare cases where the child should be joined and I refused the application. CAFCASS Evidence[49]Just as it is important to set out the history at some length, I consider it important to set out in some detail Ms Huntington’s written account of her discussion with AB. This is important not just so that anyone reading this judgment (including perhaps AB in due course) can see how AB expressed herself to the court through Ms Huntington, but because the way in which AB did so is highly relevant when the court comes to consider the Article 13 defences advanced by M.[21]In describing her mother and [step-father], AB used positive terms, including kind, funny and loving. However, when asked about her father, AB said that they do not get on well and argue a lot of the time. As a result, she found her father to be grumpy, often mean and sometimes kind. She depicted a difficult relationship with her stepmother, characterised by arguing and said that she is not very nice, annoying and upsetting. AB viewed these relationships as having deteriorated during her time living with her father and his wife, which she described as resulting in her stepmother ignoring her.[22]In exploring what AB meant by her description of her father as “mean”, she said that during arguments he is not very nice; he shouts all the time, takes things away and has punched the door on one occasion. Typical arguments centre around her homework or her arguments with her stepmother, which her father will compound by taking her stepmother’s side. AB felt that her father was kinder towards her when her sisters were present or they were in public, but she conveyed limited time spent as a family. AB also considered that her relationship with her sister PS1 was affected owing to her similarities to and alignment with [stepmother], which caused them to argue. However, she described a strong relationship with her younger sister PS2.[23]AB also spoke of a strong relationship with her maternal sibling MS1 and also with MS2, although they also argue at times. She depicted having individual time with her mother on Fridays, which she appeared to value.[24]AB described speaking Dutch fluently, having lived in the Netherlands for 5 years and attended a Dutch school.[25]In exploring her view of her life in the Netherlands, AB expressed her dislike of her home town . . . “because I don’t like being with my dad”, although she said that she had fun there when with her friends. She spoke of seeking to spend time outside of the home, at her friend’s house.[26]AB conveyed a dislike of school there, depicting a difficult transition to secondary school which included separation from her friend from primary school and an experience of feeling unliked, isolated and “picked on” by other pupils, which she attributed to the fact that she is English. Whilst AB was receiving learning support with the Dutch language, and described having a school therapist and mentor, she did not consider that this had helped her experience.[27]AB also confirmed that she had been seeing a therapist outside of school for around 5 years, for help with “depression and anxiety” and to support her in respect of “moving away and being away from my mum”. AB reflected that whilst she had not liked attending those appointments, she had found it helpful. When asked if this support had helped her to understand what had happened in her family and explore how she felt within her family, AB said that she and the therapist had only discussed the court order that determined that she lived with her father. Whilst AB understood that this to have been as a result of parental alienation by her mother, which she understood to mean her mother telling her things to make her feel negatively about her father, she refuted that her mother had behaved in such a way (based on her own experience) and expressed that she did not agree with the decision.[28]It appeared that AB had sought answers to questions from both parents, whom she said provided similar responses, although she conveyed a reluctance on her father’s part to talk with her about it. AB expressed a wish to know more about what had happened previously within her family.[29]When asked about positive aspects of her life in the Netherlands, AB related this to spending time with her sisters and going to her friend’s house. She identified her father and her stepmother as being the worst aspect of her life there.[30]AB was unsure if she had shared her concerns that she had expressed to me in respect of her father’s behaviour whilst in the Netherlands. She said that she was unsure if she had told her therapist, depicting a reluctance to talk to professionals on the basis of having previously spoken to many professionals and not having been listened to. AB conveyed that she had been upset at moving from her mother’s care to her father’s and at moving to the Netherlands but felt that she had not been listened to.[31]The main difference for AB between the two countries is that she did not feel part of a family in the Netherlands, whereas she does in the UK.[32]AB conveyed restrictions and rules in respect of her ability to speak to her mother when she was living in the Netherlands, although since having her own phone, she spoke of calling her mother on a daily basis, creating friction with her father. The way in which AB spoke of the arrangements for her to spend time with her mother in the UK in person conveyed a further sense of restriction and she expressed that her father tended not to agree to proposals for her mother to visit her in the Netherlands. AB appeared to view her father as obstructing her time with her mother, as appeared to have been inferred by her mother’s accounts to her that she would try to visit but could not agree a weekend with her father. AB gave a further example of being unable to attend a wedding in the UK the previous year, because of the restrictions that her father had imposed. AB said that her perception of her father being the parent creating the difficulties arose from her view that her father did not agree with her on anything, so she anticipated that he did not agree with her mother.[33]In talking about the circumstances by which she came to be living in the UK, AB said that she had initially come to spend time with her mother (and her family) for 4 weeks over the summer, but that she had not wanted to return to the Netherlands and so had decided at the end of the holiday that she would not return. AB expressed that she did not want to go back, to return to school or to live with her father and that towards the end of the period of holiday, she repeatedly expressed this to her mother and [step-father], thereafter, refusing to return.[34]In response, they had initially told her that she needed to return, because that was where she lived. However, AB said that they had then applied to the UK court for an order, a process which she stated she participated in, having wished to be fully involved, but that the English court had said they could not make the decision because she lived in the Netherlands. AB was unsure whether there was an intention to issue proceedings in the Netherlands but indicated that her father had then taken them to court and was holding her mother responsible. 35.When asked if she had spoken to her father about how she was feeling, AB said that he had not wanted to meet with her and that whilst he is facilitating her calls with her sisters, he has been reluctant to contact her. In turn, AB said that she does not want to talk to her father. However, at a later stage in our discussion, AB spoke of texting her father occasionally with videos that she thinks he will find funny. She also referred to her father texting her but said that she is not good at responding.[36]I acknowledged to AB the difficulties inherent in moving between two families, whilst noting that I understood that she had previously been able to settle back into her life in the Netherlands after returning from time with her mother. AB confirmed this, saying that it takes a few weeks before she is used to it, but that she does not really like it. AB expressed that she wants to live with her mother because she likes her more than her father, as she and her father do not get on at all.[37]I wondered aloud to AB whether the difficulties arose out of her father, by virtue of being her primary carer, having to be the parent that is authoritative in response to the usual tensions between an adolescent and parent and whether her relationship with her mother might become more challenging if and when she were required to assert parental authority. AB thought not, stating that her mother manages such scenarios better and without shouting and that in any event, she does not misbehave with her.[38]AB anticipated that her mother might feel happy that she wishes to remain living with her, but sad that she was unhappy in the Netherlands. She thought her father might feel sad, but that his wife would not, on the basis of the therapist’s report describing, as AB understood, that her stepmother dislikes her the most. AB stated that she was not really missing her father.[39]AB stated that it was easier to go to school in the UK, because it was nicer, she was finding the work easier and she had friends here. However, she stated that she had missed a few years’ work because of the different education system to the Netherlands. AB spoke of being engaged in extracurricular activities such as aerial yoga and swimming.[40]AB understood my explanation as to the nature of Hague proceedings which I related back to our discussion about the UK court determining that decisions in respect of AB’s care arrangements were required to be made in the Netherlands. However, AB expressed that she could not understand why she was required to be in the Netherlands in order for a decision to be made. AB reiterated that she did not want to return, expressing that she would be unhappy. She scored her strength of feeling against a return to the Netherlands as 9.5 out of 10.[41]In the event of having to return, AB was worried about what her father would be like after these events and noted that whilst “not very often” he is “sometimes cross towards her”. In contrast, AB then expressed her concern for how her father might treat her and that it might be worse than before, reiterating that he had punched a door and adding that he had pinned her to the floor on an occasion. AB expanded upon this to describe that this had been during an argument, in order to prevent her from drawing on her stepmother’s T shirt.[42]AB would not derive any reassurance from professionals in the Netherlands being informed of the difficulties to ensure support for the family, stating that everyone had known what was happening before, contradicting her earlier assertion that she had been disinclined to share her experiences with professionals. 43.Were she to remain in the UK, AB considered that she would miss her sisters and her friend but did not view there to be any other losses. She envisaged that her relationship with her father might slowly improve and would benefit from not living together. She anticipated that she would see him for holidays and that less frequent time together might result in them being nicer to each other. AB said that she no longer wished to fly, having done this so much within her life, expressing that her father, stepmother and sisters could instead visit her in the UK.[51]AB wrote a letter for

the judge as follows:

“Dear Judge, I don’t want to live with my dad because we always argue and fall out. He is often mean and will punish me by taking screens or contact from my mum away. Please don’t make me go back because I won’t. Thank you from

AB”

Thank you from AB”[47]The concerns that AB shared with me in respect of her father show clear parallels with the concerns held in respect of the narrative that she was forming of her father in previous proceedings. . ..[48]I am mindful that within previous proceedings, findings were made that AB suffered emotional harm in the care of the maternal family and that this impacted her relationship with her father. Whilst I acknowledge that significant time has passed, it is within this context and AB’s repetition of a markedly similar narrative in respect of her father that it is difficult to feel confident that AB’s views as expressed to me are entirely free of influence and are her authentic, genuinely held wishes and feelings.[49]However, it is also evident from AB’s own account and the Dutch therapeutic team’s report that there are significant tensions in AB’s relationships within her family unit in the Netherlands, that she has experienced difficulties in her school experience and presents as a young person with additional emotional and behavioural vulnerabilities, who is having an unhappy experience.[50]Whilst the contributing factors towards AB’s unhappy experience are complex, it is this experience that she has expressed a resistance to returning to in her views, wishes and feelings as expressed in her meeting with me. Whilst it is not necessarily borne out in the professional reports, AB expresses to have felt largely without agency in the significant decisions that have been made in respect of her care arrangements to date. I consider that there is likely to be an inherent difficulty in imposing what is likely to be viewed by AB as a forced return that goes against her strongly expressed wishes and feelings. Notwithstanding the practical difficulties inherent with seeking to enforce the return of a young person of AB’s age, it is likely to compound AB’s sense of powerlessness and of not being listened to, thus resulting in the potential for increased emotional and behavioural difficulties.[53]AB presented as very polarised in her thinking and her view and did not demonstrate a level of critical thinking or nuanced perspective that might ordinarily be associated with a young person aged 14. I am mindful of AB’s emotional fragility and note that the report from the Dutch therapeutic team highlights AB’s emotional and behavioural vulnerabilities and frames these difficulties in terms of her split loyalty between her two families and the impact of conflict. AB’s adverse experiences of conflict and disruption in her care arrangements render her a vulnerable child whose emotional maturity and levels of resilience may be affected.[54]. . . Whilst I note the impact of her experience of adverse familial dynamics upon AB’s emotional maturity, I would broadly assess her level of maturity to be in line with her chronological age. At the age of 14, I recognise that the court will need to give considerable weight to AB’s wishes and feelings, whilst being mindful of the context in which they are likely to have been formed. 59.The issue for the court to determine is whether AB should be returned to the Netherlands, her country of habitual residence. In the event that AB does return, M could make an application to the family court in that jurisdiction to vary the child arrangements and there has been extensive professional intervention for the family in the Netherlands which could contribute to any welfare assessment. I would respectfully recommend that a copy of this report be disclosed within any future proceedings in respect of AB.[60]I have highlighted within this report the difficulties that may be inherent in seeking to return a young person of AB’s age against her expressed wishes and feelings, particularly in the context of the complexities of the familial relationships. F will need to appreciate that if the court does make a return order, AB will likely hold him accountable for what she will view as a forced move against her wishes. There will be possible implications for managing AB’s behaviour, if a forceful return is endorsed and the long-term implications this might have on the parent-child dynamic.[61]However, in the alternative there would appear a significant risk with regards to the promotion of AB’s relationship with her father, and the potential for her view of him to be undermined in the event that she remains in her mother’s care in the UK.[55]In giving evidence for the second time, Ms Huntington was challenged comprehensively and with entirely appropriate robustness. She stood by the contents of her report. At every stage, it seemed to me that Ms Huntington was keen to impress that whilst AB is aged 14 ½, she is – by reason of her life experiences to date – a very vulnerable young person emotionally.[56]I found Ms Huntington to be a conscientious, thoughtful and balanced witness.[57]The relevant parts of Article 13 of the 1980 Convention are as follows: “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 considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.” 5.1. Article 13: Child Objections[58]It is convenient to address this defence first. As I have already indicated, much of the evidence and submissions focused on AB’s objections and M’s alternative argument of ‘Harm/Intolerable Situation’ relies to a large degree on the potential impact on AB if a return order were made in the face of her objection.[59]F accepts that the “gateway” stage is met: AB objects to being returned to the Netherlands and has attained an age and maturity at which it is appropriate to take account of her views. The issue is whether the court should exercise its discretion to make a return order.[60]In the recent Court of Appeal decision in C v M (A Child) (Abduction: Representation of Child Party) [2023] EWCA Civ 1449 at para 76, Moylan LJ said: Finally, I set out passages from Lady Hale’s speech in Re M Re M (Children) (Abduction: Rights of Custody)[2007] UKHL 55 in which she made a number of observations about the breadth of the discretion which arises under the 1980 Convention when a child objects to returning:
“[43] My Lords, 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”; and “[46] 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.”
[61]When considering the nature and strength of AB’s objections, AB has expressed her objections consistently and forcefully (“9.5 out of 10”) since July 2024. Although she has said that she would run away if an order were made, the evidence indicates that an earlier threat to run away from her father’s home was happily short-lived and addressed by her parents, and that whilst she can sometimes be disobedient and obstructive, she is generally a compliant young person.[62]To what extent are AB’s views authentically her own or the product of her mother? As Ms Papazian rightly emphasised, the court should consider AB’s “lived experience” and should not assume that, because of findings made some years ago, AB’s voice is not authentically her own. There is clear evidence, most particularly in Dr C’s report, that AB was indeed finding life at home and at school difficult in the months leading up to Summer 2024. To some extent these difficulties are readily understandable by reference to AB’s age and her life experiences to date. But how is it that these difficulties, and AB’s complaints about life at home, have morphed into a consistently expressed objection to returning to the Netherlands? I am not at all convinced that this objection is authentically her own. The findings made previously against M are not determinative of this issue but are plainly relevant to it. As Ms Huntington noted, there are clear parallels between AB’s expressed views about her father and previous concerns about the narrative she was forming about her father. Furthermore, there is the way in which AB came to speak to Ms Y, Ms Z, a social worker and police officer (with Ms Y taking notes), and then the ABE interview itself. It is difficult to avoid the conclusion that this was “case-building” by M. And even if it was not, as I have previously observed, it reflects a poor understanding of AB’s emotional needs.[63]To what extent are AB’s objections coincidental with or at odds with other relevant welfare considerations? It is not a function of these proceedings for the court to undertake an holistic welfare evaluation. If AB’s objections were followed, then she may consider that her views and autonomy generally had been respected. This may be to her benefit at least in the very short term. But it would mean leaving her in a home where, as previously found by the Family Court, she was likely to suffer emotional harm with long-term negative consequences. M’s conduct since Summer 2024 provides no reassurance that there has been any meaningful change in her capacity to safeguard AB’s emotional welfare. I accept Ms Huntington’s evidence that there would be a significant risk in respect of her ongoing relationship with her father.[64]If AB’s objections were not followed, then at least in the short term she may be harmed by the sense that her views had been overruled and her autonomy disrespected. She may well blame her father and hold this decision against him. She would have yet more disruption in her life as she would have to move from the home she has been living in for some five months. However, she would be moving back to the home she has been living in for nearly five years with the opportunity to resume the therapeutic intervention with Dr C. It is her father’s home which, as found by the Family Court, and on the evidence before this court, is the one which offers the much better prospect of meeting her emotional needs.[65]At 14 ½, AB is an older child in Convention terms and so her views would ordinarily be expected to carry greater weight. But I accept Ms Huntington’s balanced appraisal of AB’s maturity and, crucially, of AB’s emotional vulnerability.[66]I have regard to the well-established policy considerations which include the fact that the Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned, and returned promptly.[67]For all these reasons, I am not satisfied that the “Child Objections” defence has been made out. 5.2. Article 13: Harm/Intolerable Situation[68]I have regard to the guidance from the Supreme Court in Re E (children) (international abduction) [2011] UKSC 27 and the helpful summaries of applicable principles provided by MacDonald J in MB v. TB [2019] EWHC 1019 and Z v. D (Refusal of Return Order) [2020] EWHC 1857.[69]As I have already summarised at para 6 above, but will repeat for convenience, M’s case is put on the basis that a “forced return” would engage the “Harm / Intolerable Situation” defence because it would:(1) Go against AB’s clearly stated wishes and would leave her feeling disempowered.(2) Fail to accord due weight to AB’s autonomy as a 14 ½ year old young person.a. On all accounts, there have been considerable tensions particularly since around the Summer of 2023.b. On AB’s account (which is disputed by F) she has at times been exposed to frightening behaviours by F. (4) Require AB to attend a school where she had previously been unhappy.[70]In respect of points (1) and (2), I have already addressed these matters when dealing with the “Child Objections” defence.[71]In respect of points (3) and (4), I must and do take AB’s allegations at their highest and must take account of any protective measures proposed by F. As I have already observed, there were plainly tensions and struggles at home and at school in the Netherlands. As has been observed in the authorities, whilst although “grave” characterises the risk rather than the harm, there is in ordinary language a link between the two.[72]In my judgment, AB’s allegations, such as they are, and all four points advanced taken cumulatively, fall short of the sort of harm which might engage this defence.[73]Whilst the nature and level of harm does not in my judgment engage this defence, I am nonetheless reassured by the protective measures proposed by F – most particularly his commitment to the resumption of Dr C’s therapy. I urge AB and M to engage with that intervention.[74]For the reasons set out above, I make a return order.[75]As recommended by Ms Huntington, I will prepare a letter for AB explaining my decision. I am grateful to Ms Huntington for her offer of input into that letter and for agreeing to speak directly to AB before the end of this week.[76]I do not doubt that my decision will be upsetting for M and other members of the maternal family. I urge her and them to work constructively with F in the implementation of my order. AB should be told that(1) the court has listened very carefully to her parents and Ms Huntington,(2) the court has listened very carefully to what she herself has had to say,(3) the court has decided that she must go back to the Netherlands,(4) if there is to be any change to her care arrangements then that will have to be dealt with in the Netherlands,(5) both her parents love her dearly and she is not in any trouble.[77]As to the timing of implementation, there is a tension between(1) leaving AB in an emotionally harmful environment any longer than is necessary and(2) minimising the disruption for her in terms of schooling and having an opportunity to say her “goodbyes for now” to those who are dear to her. I was pleased to hear that F will be in the UK to collect AB and spend some time with her before returning to the Netherlands. There is no easy answer to this, but I direct that the return order should take effect by midnight on 13 December 2024 if not before.[78]I have reflected on F’s request that I make an order regulating telephone contact between AB and M, and that I consider ways in which I might discourage any attempt by or on behalf of AB for her to seek legal representation during the implementation period. On both counts, I have concluded (without dwelling on arguments over legal basis) that such measures risk doing more harm than good.[79]I give permission for this judgment and Ms Huntington’s report to be disclosed to anyone undertaking therapy with AB for the purposes only of informing that therapy, and into any proceedings which may be brought in the Netherlands in relation to AB.[80]I will now deal with any consequential directions.