F v M (Abduction: Settlement: Grave Risk) [2025] EWHC 1713 (Fam)
Case No FD 25 P 00114[2025] EWHC 1713 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 4 July 2025
Before
MR. NICHOLAS ALLEN KC(Sitting as a Deputy High Court Judge)
Between
FApplicantMRespondent(Abduction: Settlement: Grave Risk)Mr. Teertha Gupta KC and Ms. Olivia Gaunt(instructed by Hanne & Co Solicitors LLP) for ApplicantMs. Anita Guha KC and Mr. Alex Laing(instructed by Dawson Cornwell LLP) for RespondentHearing Hearing dates: 5 th and 6 th June 2025Draft judgment circulated to the parties –24 th June 2025Approved JudgmentThis judgment was handed down remotely at 10.30am on 4 th July 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). With regards to protective measures, in E v D (Return Order) [2022] EWHC 1216 (Fam) MacDonald J at [32] drew the following principles from Re GP (A Child: Abduction) [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: i) The court must examine in concrete terms the situation that would face a child on a return being ordered. If the court considers that it has insufficient information to answer these questions, it should adjourn the hearing to enable more detailed evidence to be obtained. ii) 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. iii) 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. iv) There is a need for caution when relying on undertakings as a protective measure and there should not be a too ready acceptance of undertakings which are not enforceable in the courts of the requesting State. v) There is a distinction to be drawn between the practical arrangements for the child's return and measures designed or relied on to protect the children from an Art 13(b) risk. The efficacy of the latter will need to be addressed with care. vi) The more weight placed by the court on the protective nature of the measures in question when determining the application, the greater the scrutiny required in respect of their efficacy. 96). Further at [33] MacDonald J stated: With respect to undertakings, what is therefore required is not simply an indication of what undertakings are offered by the left behind parent as protective measures, but sufficient evidence as to extent to which those undertakings will be effective in providing the protection they are offered up to provide. 97). In H v O; and others (Secretary of State for the Home Department Intervening) [2025] EWHC 114 (Fam), MacDonald J at [45] repeated what he had said in E v D (Return Order) as to what are the key principles in determining the efficacy of protective measures. 98). 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'. 99). 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 (Children) (Abduction: Consent: Oral Evidence) (Art 13(b)) [2023] 1 FLR 911 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”. 100). 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). 101). If I find Article 13(b) satisfied, I retain a residual discretion to return. Analysis 102). M raises concerns in respect of(i) domestic abuse;(ii) housing issues;(iii) her immigration position; and(iv) the effect on her mental health. 103). I shall consider these in turn (albeit conscious that I also need to evaluate their cumulative effect). Domestic abuse 104). M makes a number of serious allegations against F. She alleges that her relationship with F was and is an abusive one, with her frequently feeling sexually disrespected and used. She alleges there were frequent occasions when F would push her to have sex, during which she would disassociate. M states she was coerced by F into accepting his terms as to how he chose to behave during their ‘open’ relationship, that F had multiple sexual partners and had sexual intercourse without using condoms in the face of M’s objections placing M at an unacceptable level of risk. It is said M is suffering the enduring effects of the traumatic experiences of her relationship with F in which she feels that her boundaries were violated and her self-esteem was eroded. From March 2024, it is said that M started receiving support from the domestic abuse charity, Women’s Aid X, and that M continues to attend support groups and one-on-one sessions focussed on helping women cope with coercive control. 105). I readily acknowledge the seriousness of these allegations of domestic abuse. However I do not consider that, even taken at their highest, they constitute a grave risk that B would be exposed to harm or placed in an intolerable situation if she were to be returned. 106). I agree with Mr. Gupta and Ms. Gaunt that the allegations are mostly situational to the parties’ relationship. I also consider that M’s case is undermined by her own proposals: as recently as 19th January 2025 (which is after she withdrew from the parties’ written agreement) she set out in an email to F some questions and suggestions that she had sent to her lawyer which included the possibility of committing to spend six months with B each year in Portugal; I agree she cannot then say B would be exposed to harm or placed in an intolerable situation by returning to Portugal. M’s case is further undermined by (i) M answering ‘no’ in response to the questions “Are there allegations of harm?” (which expressly includes domestic abuse) in her application for a child arrangements order issued on 23rd December 2024; (ii) although M claimed exception from a MIAM on grounds of domestic abuse she said in a WhatsApp to F dated 8th February 2025 she “acknowledged” domestic abuse with her lawyer after returning from Portugal last year “when you threatened to stop us coming home”, that legal aid is granted when this has been acknowledged and that domestic abuse “is in the papers for that reason alone” and that M had “no need or intention” to ask anyone to “punish” F with a criminal order; and (iii) the parties’ frequent communications, interactions and handovers without issue. Housing issues 107). M already has rental accommodation in Portugal, which she chose and where M and B have stayed. M’s assertion at paragraph 96 of her Statement that “I do not have anywhere to live in Portugal” is not correct. In her email of 19th January 2025 to which I have referred above she refers to having a “home base” in Portugal. I understand that M’s property is approximately an hour and a half away from F. Immigration 108). I have considered this in detail above. Effect on M’s mental health 109). I have likewise considered this above. M asserts that she will feel isolated and will be impacted by a return to Portugal. However the SJE report does not support her Article 13(b) defence. At most, the evidence suggests that a return to Portugal would have a negative effect on M’s wellbeing. As Mr. Gupta and Ms. Gaunt observe, this is understandable given M currently does not want to return. There may be aggravating factors which would increase her experience of distress, and there may be constraints on her freedoms and ability to draw upon adaptive means of coping. However the evidence does not support a conclusion that there is a risk of a significant deterioration in M’s mental health on a return, or of M becoming so psychologically disabled so as to mean that she would not be emotionally and physically available to B. M does not say that she will not or cannot return. 110). The threshold for Article 13(b) is high. In Re B (A Child) (Abduction: Article 13(b): Mental Health) [2024] EWCA Civ 1595 Moylan LJ at [54] reiterated that the “key question”is: … what is likely to happen if the mother and A were to return … Is the likely effect on the mother's mental health sufficient to establish a grave risk that A would be exposed to physical or psychological harm or otherwise placed in an intolerable situation? As referred to above, this requires consideration of the nature of the risk; the likelihood of the risk materialising; and the consequences of the risk materialising fora. A. These are for the purposes of answering the ultimate question, namely whether there is a grave risk that returning A … would expose her to psychological harm or otherwise place her in an intolerable situation. 111). The assessed potential impact on M’s mental health in this case does not satisfy this threshold. 112). Standing back and considering the allegations relied on by M as a whole, rather than individually, I am also of the view that their cumulative effect does not constitute a grave risk of harm to B or otherwise place her in an intolerable situation. 113). If, however, I am wrong in this conclusion and M’s allegations, at their highest, would constitute a grave risk of harm to B or otherwise place her in an intolerable situation, I would be satisfied that the protective measures that are offered are sufficient to mitigate the harm. At paragraph 104 of his Statement F offered the following undertakings: a) to apply for a hearing as soon as possible after B’s return; b) to pay for M and B’s economy flights from the UK to Portugal to include one piece of hold luggage each; c) not to attend at the airport upon M and B’s arrival in Portugal; d) not to support or instigate any civil or criminal proceedings arising from M’s removal of B from Portugal to England or her retention of B in England; e) not to use or threaten abuse against M nor encourage anyone else to use or threaten abuse against M; f) not to separate B from M save for agreed periods; g) not to attend M’s place of residence without prior agreement; h) to lodge the return order and undertakings with the Portuguese court prior to B’s return and provide evidence of this; i) to pay M child maintenance of €800 pm until the first on notice hearing in Portugal; j) to provide M with a car for the first six months; k) to contribute towards any nursery fees in relation to any nursery that M and he agree on; and l) to contribute towards any medical costs of M andb. B. 114). Although it is of course a matter for me I note Ms. Veitch considered at paragraph 56 of her report the protective measures to be appropriate and not place B at risk of harm. 115). In light of the SJE immigration expert’s opinion that M’s property in Portugal may not be a sufficient permanent address for the purpose of M renewing her existing visa or obtaining a new one, F thereafter offered M the use of a family property. However, his mother lives upstairs. Unsurprisingly this was not attractive to M. At my encouragement F put forward an alternative option which was that he would pay the rent on a property owned by his cousin for a year and which is currently vacant and available for immediate occupation. At my suggestion F also offered to pay the costs of M’s immigration application being prepared and supported by a lawyer capped at €3,000 in the first instance (which was the cost estimated by the SJE of this work being carried out by one of his colleagues). F also agreed to write off any sums he considered M owed him (in the sum ofc.€3,500). Further “if pressed” he offered to cover health insurance for M and B for one year with the premium of €900 for year to be paid direct to the provider. 116). I will accept these undertakings in their final form as offered with amendments that (i) as to the write-off of the alleged debt this is to include F not seeking to offset any or all of the same against the sums owed for maintenance /accommodation; (ii) F is not to seek to remove B from M’s care save for the purposes of contact as agreed by the parties or ordered by the Portuguese court; (iii) F is to make payment of the deposit and initial month’s rent prior to M’s return to Portugal so that the property is available for her; (iv) the first payment of €800 pm is to be made before M’s return;(v) F is to make such payment (if any) to the immigration lawyer as is necessary for M begin the process of the renewal of her immigration visa prior to 30th June 2025; and(vi) the provision of the €800 pm, the accommodation, and the car is to be for a minimum of a year or until the positive determination of M’s immigration application (if earlier). I consider that not only is this the appropriative duration for the purposes of protective measures but this longer period of support is also likely to be of assistance in satisfying the Portuguese immigration authorities of proof of (permanent) residence and income. 117). My return order is conditional upon all the foregoing being put in place. 118). The maintenance and similar obligations will be subject to any order varying the same that may be made by the Portuguese courts. 119). Given the recent allegations M has now said that rather than F having staying contact with B in Portugal she now offers only visiting contact to be supervised by F’s sister. F in turn states that he will not permit M to take B out of Portugal for the first 12 months because of his concern that she would simply retain B in this country. Therefore proceedings in Portugal in the short-term dealing with these and other matters concerning B’s welfare will be needed. 120). On M’s behalf it is said it is significant there is no evidence as to the extent to which the Portuguese court would enforce undertakings given to the English court or mirror those undertakings with orders of its own. 121). I am conscious of the importance of this issue as discussed in Re T (Abduction: Protective Measures: Agreement to Return) [2024] 1 FLR 1279 per Cobb J and with whom the other two members of the Court of Appeal agreed. However in the somewhat unusual factual circumstances of this case (see for example paragraphs 29-30 above) I am satisfied that this is a case where F can be trusted as he is mindful of the need for B to have the benefit of a safe and secure environment and of the importance of M having the same in order to be able to meet B’s needs. 122). My acceptance of F’s undertakings (which constitute ‘measures’ for the purpose of Article 23 of the Hague Convention 1996 and are therefore recognisable by operation of law in Portugal) will therefore be sufficient protection. I am satisfied on the facts of this case that this satisfies the need for the protective measures to be effective (which is not confined solely to the issue of enforceability). 123). For the same reasons I do not consider that the undertakings need to be reflected in an order of the Portuguese courts prior to return under Article 11 of the Hague Convention 1996. 124). Having found Article 13(b) defence is not satisfied, the residual discretion to order a return does not arise. Conclusion 125). For the foregoing reasons I dismiss both of the defences raised by M and order a summary return of B to Portugal. Addendum 126). On 3rd July 2025 I received an agreed note of proposed corrections and anonymisations to my draft judgment. I am grateful for its preparation and have adopted all of the same. 127). That is my judgment.