M v A (No 2: Application to Set Aside Return Order) [2025] EWHC 1344 (Fam)
[2025] EWHC 1344 (Fam)Case No FD 24 P 00459
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 2 June 2025
Before
MR. NICHOLAS ALLEN KC(Sitting as a Deputy High Court Judge)
Between
MApplicantARespondent(No. 2: Application to Set Aside Return Order)Ms. Jacqueline Renton KC and Ms. Alexandra Halliday(instructed by McAlister Family Law Solicitors) for ApplicantProfessor Rob George KC and Mr. Edward Bennett(instructed by RWK Goodman) for RespondentHearing Hearing dates: 13 th and 14 th May 2025Draft judgment circulated to the parties –28 th May 2025Approved JudgmentThis judgment was handed down remotely at 10.30am on 2 nd June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
Mr. Nicholas Allen KC:
[1]The terms of Article 13(b) are by their very nature restricted in their scope. The defence has a high threshold, demonstrated by the use of the words “grave” and “intolerable”.[2]The focus is on the child. The issue is the risk to the child in the event of his or her return.[3]The separation of the child from the abducting parent can establish the required grave risk.[4]When the allegations on which the abducting parent relies to establish grave risk are disputed, the court should first establish 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 establish how the child can be protected from the risk.[5]In assessing these matters, the court must be mindful of the limitations involved in the summary nature of the Hague process. It will rarely be appropriate to hear oral evidence of the allegations made under Article 13(b) and so neither the allegations nor their rebuttal are usually tested in cross-examination.[6]That does not mean, however, that no evaluative assessment of the allegations should be undertaken by the court. The court must examine in concrete terms the situation in which the child would be on return. In analysing whether the allegations are of sufficient detail and substance to give rise to the grave risk, the judge will have to consider whether the evidence enables him or her confidently to discount the possibility that they do.[7]If the judge concludes that the allegations would potentially establish the existence of an Article 13(b) risk, he or she must then carefully consider whether and how the risk can be addressed or sufficiently ameliorated so that the child will not be exposed to the risk.[8]In many cases, sufficient protection will be afforded by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there.[9]In deciding what weight can be placed on undertakings, the court has to take into account the extent to which they are likely to be effective, both in terms of compliance and in terms of the consequences, including remedies for enforcement in the requesting State, in the absence of compliance.[10]As has been made clear by the Practice Guidance on “Case Management and Mediation of International Child Abduction Proceedings” issued by the President of the Family Division on 13 March 2018, the question of specific protective measures must be addressed at the earliest opportunity, including by obtaining information as to the protective measures that are available, or could be put in place, to meet the alleged identified risks. 95) I also remind myself that the section is referring to the harm likely to be caused to the child, not the adults. It is, however, clear from ReS (A Child)(Abduction: Rights of Custody) [2012] 2 FLR 442 at [34] that the subjective anxieties of a respondent whether reasonable or unreasonable will amount to an Article 13(b) defence if the court concludes that on return the respondent will suffer such anxieties that their effect on their mental health will create a situation that is intolerable for the child. 96) I am also entitled to have regard to the purpose and policy aims of the Hague Convention. In Re W (Abduction: Intolerable Situation) [2018] 2 FLR 748 Moylan LJ stated: [46] Child abduction is well-recognised as being harmful to children. As was noted in Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758, the 'first object of the Convention is to deter either parent … from taking the law into their own hands and pre-empting the results of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any disputes can be determined there'. 97) I shall take M’s allegations against F (and the consequent risk of harm) at their highest and thereafter if satisfied that the risk threshold is crossed go on to consider whether protective measures sufficient to mitigate the harm can be identified. Although it was made clear in Re B per Moylan LJ at [71] that it is not necessary (original emphasis)for a judge to undertake the Re E approach as a two-stage process (because the question of whether Article 13(b) has been established requires a consideration of all the relevant matters including protective measures), absent the court being able confidently to discount the possibility that the allegations give rise to an Article 13(b) risk, conflating the Re E process creates the risk that the judge will fail properly to evaluate the nature and level of the risk(s) if the allegations are true and/or will fail properly to evaluate the sufficiency and efficacy of any protective measures. In other words the judge may fall “between two stools”. 98) I also remind myself that as stated in Re B per Moylan LJ at [70] that: … the court is evaluating whether there is a grave risk based on the allegations relied on by the taking parent as a whole, not individually. There may, of course, be distinct strands which have to be analysed separately but the court must not overlook the need to consider the cumulative effect of those allegations for the purpose of evaluating the nature and level of any grave risk(s) that might potentially be established as well as the protective measures available to address such risk(s). 99) I also bear in mind that as cited in The Mother v The Father [2023] EWHC 2617 (Fam) per Henke J at [57] (b) when summarising the father’s submissions: (b) The exception in Art 13 (b) is concerned with situations which went beyond what a child might reasonably be expected to bear. It is interpreted strictly, and harm cannot arise solely from separation from the responsible parents - X v Latvia (27853/09). In NM v SM [2023] EWHC 2209, separation of a child from an abducting parent who was refusing to return and who had cared for that child for 15 months did not establish the Art13(b) defence. Equally if the fact the abducting parent will not return means that the children concerned are placed in foster care, that does not establish an Art13(b) defence; the central issue is whether the child will be adequately protected on return - Re S (Abduction: Return to Care) [1999] 1 FLR 843. 100) If I find Article 13(b) satisfied, I retain a residual discretion to return. 101) When considering these children in this case I am satisfied that they would be placed at grave risk of emotional/psychological harm or otherwise placed in an intolerable situation if they do not return with M. 102) First, as Ms. Renton submitted, the Article 13(b) defence is assessed from the perspective of the children. If, as I must and do, I take M’s allegations of domestic abuse at their highest, the children have been subjected to domestic abuse. As Ms Veitch observed at paragraph 37 of her the Cafcass Report of 19th November 2024 if M’s allegations are true“[T] and [H] have lived with the verbal and psychological abuse and coercive control of their mother, by their father.” They have also been witness to, and experienced to date, M’s vulnerability and her mental health difficulties, including the deterioration in December 2024. It would be fanciful to suggest that they have not been aware of M’s mental health difficulties given that she is their primary carer and they have a close and loving relationship with her. They have also not been fully shielded from the conflict. The children’s lived experience of domestic abuse is clear from the Cafcass report. This is the context with which I am concerned. 103) In Re A (Children) (Abduction: Article 13(b)) [2022] 1 FLR 1 Moylan LJ observed at [88] that “the effect of the separation of a child from the taking parent can establish the required grave risk”. I have already concluded that the likelihood is that M will not return. M has always been the children’s primary carer. They have been in her sole care for last nine months. They have never had more than two two nights away from M since they have been in England. Separation from M in this context would be completely different from anything they have ever experienced whether in Poland or in England. I accept that they are likely in such circumstances to be incredibly concerned as to what was happening, why M was not returning to Poland with them, and whether (and if so when) they would see F. In my view this would be sufficient to establish the required grave risk of harm. In this context it is relevant that, as fully set out in the Cafcass Report, T has aphasia (a language disorder) which causes difficulties with communication and which makes her more vulnerable. 104) If the children return to Poland they could not be returned to F’s care given the Cafcass recommendation that there are no spending time arrangements between the children and F until a risk assessment is undertaken by the Polish authorities to determine whether this is safe. 105) It is F’s case that the children could return into the care of F’s relatives who could look after them pending any social services investigation. F has suggested (in his statement of 6th May 2025 at paragraph 10) that his sister “is able to collect the children and bring them back. I have spoken to my sister and my parents who are incredibly supportive of us and are willing to care for thechildren subject to assessments being undertaken in Poland before they return to my care”. However, I have no evidence as to the children’s relationship with F’s sister or her proposals in respect of looking after them. I have no statement from her. Ms. Renton and Ms. Halliday submitted in their Position Statement that: a) F’s sister is not an important figure in the children’s lives. They see her once or twice a year for brief visits of a few days. She has spent very little time alone with them. She has never spent an overnight alone with H and last had one overnight with T either at Easter 2023 or Easter 2024 in Vienna; and b) F’s sister lives in Vienna, she is a single woman who lives in a one-bedroom flat and who works as an artist. Her work means that she often travels, including abroad. She also suffers from depression and anxiety, and a thyroid issue which means she often feels very tired. When she has visited the family in Krakow, she has not wanted to get up early to see the children. Ultimately, her lifestyle is not conducive to being the primary carer of the two children, and it is entirely unclear as to how the placement would work logistically given that she lives in Vienna and travels for work. 106) I also accept that any placement of the children with a member of the paternal family would, in all likelihood, be a placement with F by the backdoor. The paternal family are not subject to orders of this court and there is no way of regulating F’s involvement with the children if such a placement is endorsed. M alleges (and I accept for these purposes) that, even during a recent call between F’s parents and the children, F took over and controlled the phone call, placing pressure on T. 107) The reality therefore is that the children would have to be returned into the care of Polish social services. In my view that these children would now be returned to Poland, into the care of social services the specifics of which are completely unknown to this court (identity of placement, timescales and so on), whilst the children know that their M stays behind in England in the vulnerable state that she is currently in and there is then future litigation about what happens to them, is a state of affairs that meets the Article 13(b) threshold. 108) I should record that in this context Professor George submitted that at this stage of my analysis that I should adjourn the proceedings in order for F to obtain further information as to the potential alternative placements for the children (including with his sister as what was asserted on M’s behalf at paragraph 105 above is not accepted by him). In relation to the potential involvement of social services he stressed that these were private law proceedings and there was therefore a limit to the information F could obtain as a private citizen and where Polish social services are not yet concerned with the children as they are not living in that country. All that is known at present is as set out in paragraph 36 of his and Mr. Bennett’s position statement namely “F’s Polish family lawyer has advised that private law proceedings could be issued two weeks prior to the children’s return, and that the court could direct the appointment of a Kurator, a court appointed social worker, to supervise contact and, in due time, to provide risk assessments re F and other aspects of the family dynamic”. 109) However, I agree with Ms. Renton that it has been clear that I would be tasked with stages (c) and (d) of the four-stage process as set out in Re B (A Child: Abduction: Article 13(b)) since mid-January 2025. Professor George’s position is in effect an acknowledgment that there as a lacuna in F’s own evidence. Given F stated in paragraph 10 of his statement of 6th May 2025 that “I am also very aware of the serious consequence of the children being taken into social services if [M] maintains that she will not return to Poland” heshould have put in evidence proper placement alternatives which could have been the subject of case-management even if F thought the likelihood of M’s non-return was not genuine. 110) Further, these are summary proceedings that are meant to be resolved within a short time-scale. As Moylan LJ observed in Re B (A Child: Abduction: Article 13(b)) at [90] there is a need for applications under the Hague Convention 1980 to be “determined expeditiously”. As such it is preferable they be brought to a final resolution based on the evidence that I have as to placement rather than adjourned for further evidence to be obtained and thereafter relisted. 111) I also consider that M’s Article 13(b) defence is established on the basis that (when taken in combination): a) as Moylan LJ observed in Re B (A Child: Abduction: Article 13(b)) at [105] Article 13(b) is “looking to the future”. M’s mental health will in all likelihood deteriorate if she returns to Poland with the children in such a way that will negatively impact on them and lead to them being placed at grave risk of emotional/psychological harm and otherwise placed in an intolerable situation. As Moylan LJ stated in Re B at [114] “[t]o adopt what Lord Wilson JSC said in In re S [2012] 2 AC 257, the “effect on [the mother’s] mental health will create a situation that is intolerable for” B”; and b) I do not consider F can be trusted to comply with his undertakings. The undertakings may therefore well not be effective as protective measures. In her witness statement of 17th April 2025 M sets out her reasons for why she has no confidence that F would adhere to any of the terms of the order from paragraph 15 onwards. They include(i) F having said to M that in Poland the Order “is just a piece of paper”;(ii) F having put M under considerable pressure to return to the family home even after the December 2024 order was finalised;(iii) since being in England F has threatened her,placed her under considerable pressure and not complied with court orders, often telling the children during indirect contact that they will be returning to Poland soon, insisting on seeing M’s face on camera, threatening to report M in front the of the children if they are not fully focussed and, despite it being previously stipulated that phone calls will take place at 6 pm every day, F overwhelming M with calls, messages and voice notes throughout the day demanding to speak to the children. The order of 15th October 2024 (at paragraph 5) records the parties’ agreement that they will both do their best to keep the children out of the proceedings not to put them under pressure or expose them to adult issues. The order of 16th December 2024 provides (at paragraph 15 c) for F not to intimate, harass or, pester M. M states that F has therefore disregarded both orders which demonstrates his lack of regard for the same and M states that if he does this when M lives in another country F would not comply with the protective measures as set out in order if she did return. It is of note that F does not engage with any of these points in his statement in response and of course I must take them at their highest in any event.I also agree as submitted on M’s behalf that that F’s conduct and M’s reaction to has to be set in the context of her allegations of domestic abuse and feelings of control by F for many years. I therefore have the advantage over Mr. Glasson KC as to how F has acted since the making of the return order. As a result I do not share his confidence that F would abide by the protective measures offered which are summarised in paragraph [54] of his judgment and which include not to intimidate, harass, or pester M and which at paragraph [94] he said “contain a number of important features that meet the cumulative risks” and at paragraph [102] that “taking into account these protective measures, I am satisfied that the risks on return to the children can be addressed and sufficiently ameliorated so that the children will not be exposed to a grave risk within the scope of Article 13(b)”. F proposes materially the same set of protective measures at paragraph 12 of his statement of 6th May 2025 (save he offers to vacate the family home for six months as an alternative to funding rented accommodation for M but given the family home is in a block owned by F’s parents who live in another apartment in the block Professor George (rightly) accepted this was unlikely to be an attractive option for M). Put simply, as Ms. Renton submitted, F’s actions since December 2024 calls his bona fides into question. In reaching this decision as to effectiveness I bear in mind the guidance in E v D [2022] EWHC 1216 (Fam) per MacDonald J where at [32] he stated that in determining whether protective measures can meet the level of risk reasonably assumed to exist on the evidence, a number of principles can be drawn from Re P (A Child) (Abduction: Consideration of Evidence) [2018] 1 FLR 892, Re C (Children) (Abduction: Article 13(b)) [2019] 1 FLR 1045, and Re S (A Child) (Hague Convention 1980: Return to Third State) [2019] 2 FLR 194 including (i) in deciding what weight can be placed on undertakings as a protective measure, the court has to take into account the extent to which they are likely to be effective both in terms of compliance and in terms of the consequences, including remedies, in the absence of compliance; and (ii) the issue is the effectiveness of the undertaking in question as a protective measure, which issue is not confined solely to the enforceability of the undertaking. 112) In light of the foregoing I do not need to go on and consider Ms. Renton’s and Ms. Halliday’s further submission that if M was to return “there are real difficulties with the current protective measures package” save to observe that I would be concerned that this was tantamount to a disguised attempt to appeal against the original order. 113) I agree in this context with what Professor George and Mr. Bennett state at paragraph 32 of their Position Statement namely “part of M’s stated opposition to a return amounts to no more than disagreeing with Mr. Glasson’s unappealed conclusions that the extensive protective measures offered by F, would be sufficient to address the alleged risks to her and the children, assuming those risks at their highest.”. As Moylan LJ observed in Re B (A Child: Abduction: Article 13(b)) at [91] “[t]he court will clearly be astute to prevent what, in essence, are attempts to re-argue a case which has already been determined …”. 114) Having found Article 13(b) satisfied, in light of all that I have said above there is no basis for me to exercise my residual discretion to order a return. Conclusion 115) I accept (as Ms. Renton and Ms. Halliday began their Position Statement and as Ms. Renton concluded her oral submissions) that as Baroness Hale stated in Re D (A Child) (Abduction: Rights of Custody) [2007] 1 FLR 961 stated at [52]: No one ever intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm. 116) In Re T (Abduction: Protective Measures: Agreement to Return) [2024] 1 FLR 1279 Cobb J (giving the judgment of the Court of Appeal) having referred at [76] to Re D (A Child) (Abduction: Rights of Custody) at [52] reiterated that “The 1980 Hague Convention should not itself become an instrument of harm.” 117) In my view this risks being one of those cases. I therefore (i) grant M’s set aside application; (ii) determine that M’s Article 13(b) defence is established and order a non-return; and (iii) refuse F’s enforcement application. 118) That is my judgment.