Q and R (Children) (Abduction: Article 13(b)), Re [2025] EWHC 2912 (Fam)

[2025] EWHC 2912 (Fam)

Case No FD25P00191

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985

AND IN THE MATTER OF THE SENIOR COURTS ACT 1981

AND IN THE MATTER OF Q (A GIRL) and R (A GIRL)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 5 November 2025

Before

MR DAVID REES KC

(Sitting as a Deputy Judge of the High Court)

(In Private)

Between

KNApplicant

SBRespondent

QRespondent

(By her Solicitor Guardian, Laura Coyle)Respondent

Ms Laura Harrington (instructed by Londonium Solicitors) for Applicant

Mr Paul Hepher (instructed by Dawson Cornwell) for First Respondent

Ms Cliona Papazian (instructed by Freemans Solicitors) for Second Respondent

Hearing Hearing date: 4-5 November 2025

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 David Rees KC:

Introduction

[1]This judgment is being delivered orally from a prepared draft which requires only typographical correction. Both parents require the assistance of interpreters. To ensure that they understand my decision and avoid prolonging any uncertainty, I make clear that I am going to dismiss this application and am not going to order the return of the children to Italy. Because it is being delivered from a prepared draft, I will perfect that and circulate it to counsel after this hearing. This will avoid the expense of a separate transcript.

[2]This is an application under the 1980 Hague Convention for the summary return to Italy of two children, Q who is aged 14 and R, aged 11. They have been in England together with their older sister P (aged 20) and their mother SB since October 2024. The parents are both originally from country B. However, they moved to Italy in around 2006 and both of the two younger children were born there. The parents and children all have dual B and Italian nationality.

[3]The applicant father is represented by Ms Laura Harrington. As I outline in more detail below, she was instructed extremely late and has faced a number of difficulties in communicating with her client and dealing with late changes in the nature of his case. The respondent mother is represented by Mr Paul Hepher of counsel. Q is separately represented by Ms Cliona Papazian of counsel, instructed by Laura Coyle, Q’s Solicitor Guardian. I am grateful to them all and in particular to Ms Harrington who has dealt with the obvious difficulties of her position in the best traditions of the Bar.

[4]This application has a number of unusual features, not least the fact that the applicant father is himself currently also living in England and Wales, where he has EU pre-settled status. He has apparently let out the family home in Italy on a short-term let and travelled to England, where he is staying with friends to enable him to be in this country for the period leading up to the determination of these proceedings. Notwithstanding his current presence in England and Wales he continues to seek the return of Q and R to Italy under the Convention. Mr Hepher for the mother and Ms Papazian for Q have both expressed concern over this state of affairs and seek to categorise this as both an abuse of process and as evidence of the control that this father is seeking to exert over his wife and daughters.

[5]Although the final hearing in this case was listed at a hearing on 31 July 2025, there have been a large number of last minute difficulties experienced by the parties and by the court. These were exacerbated by the fact that the father’s previous solicitors came off the record on 8 October 2025 and his new solicitors did not come onto the record until 27 October 2025. This led to the father’s final witness statement not being filed until 31 October.

[6]His counsel, Ms Harrington was not instructed until 3pm on the eve of the hearing and, owing to the non-appearance of the interpreter booked by the court, she initially had considerable difficulties obtaining instructions from her client yesterday morning. Once an interpreter had been identified I delayed the start of the hearing by over an hour to give her an opportunity to take instructions. However, as I record below, there was a last minute and highly significant change in the applicant’s position on the protective measures that he was offering which ultimately only became clear to the parties and to the court in Ms Harrington’s oral submissions, although I wish to make clear that I do not seek to assign any blame to Ms Harrington for the manner in which this shift in her client’s position came to light.

[7]Turning then to the nature of the dispute between the parties. It is common ground between them that for the purposes of the 1980 Convention:a. Q and R were removed from Italy to England by the mother in October 2024;

b. That removal was wrongful and in breach of rights of custody being exercised by the father; and

c. Q and R were habitually resident in Italy immediately prior to their removal to England and Wales.

[8]This is therefore a case where I am required by the 1980 Convention to order Q’s and R’s summary return to Italy unless I am satisfied that the mother and Q have made out one of the exceptions to the obligation to return that are found under

Art 13 of the Convention

. They both rely on the following two grounds.

[9]First, Art 13(b) of the Convention. This provides 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."

[10]Secondly they also rely on what is usually termed the “child objections” exception namely:

“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.”

[11]Given the reliance on the child objections exception, a report had been directed from Cafcass and the author of that report, Ms Lillian Odze who had met with both Q and R, gave oral evidence and was cross-examined by counsel.

[12]I will now turn to summarise the legal principles that underlie my decision. They are well established and there was no dissent between counsel as to the applicable law.

Art 13(b)

[13]The following is a summary of the relevant principles identified from the caselaw:a. There is no need for Art 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of Art 13 are quite plain and need no further elaboration or gloss (Re E (Children)(Abduction:Custody Appeal)

[2012] 1 AC 144

[54]).

b. It has a high threshold demonstrated by the use of the words “grave” and “intolerable”. (Re A (Children)(Abduction: Article 13(b))

[2021] EWCA Civ 939

;

[2021] 4 WLR 99

at [84]).

c. The focus of Art 13(b) is on the risk to the child in the event of his or her return (Re A at [85]).

d. The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process (Re E at [32]).

e. The risk to the child must be ‘grave’. It is not enough for the risk to be ‘real’. It must have reached such a level of seriousness that it can be characterised as ‘grave’. Although ‘grave’ characterises the risk rather than the harm, there is in ordinary language a link between the two (Re E at [33]).

f. Both physical and emotional abuse can establish the existence of a grave risk within Art 13(b). (Re A at [87]).

g. The words ‘physical or psychological harm’ are not qualified but do gain colour from the alternative ‘or otherwise’ placed ‘in an intolerable situation’. ‘Intolerable’ is a strong word, but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate’ (Re E at [34]).

h. The effect of the separation of a child from the taking parent can establish the required grave risk but the court must be careful because as a rule the parent should not be allowed to create a situation that is potentially harmful to the child, and then rely on it to establish the existence of a grave risk (Re A at [88-90]).

i. Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. Where the risk is serious enough the court will be concerned not only with the child’s immediate future because the need for protection may persist (Re E at [35]). In relation to this point the 1980 Hague Convention Guide to Good Practice provides further guidance at paras [36] and [37] as follows:

“[36] Therefore, whilst the examination of the grave risk exception will usually require an analysis of the information/evidence relied upon by the person, institution or other body which opposes the child’s return (in most cases, the taking parent), it should not be confined to an analysis of the circumstances that existed prior to or at the time of the wrongful removal or retention. It instead requires a look to the future, i.e., at the circumstances as they would be if the child were to be returned forthwith. The examination of the grave risk exception should then also include, if considered necessary and appropriate, consideration of the availability of adequate and effective measures of protection in the State of habitual residence. [37] However, forward-looking does not mean that past behaviours and incidents cannot be relevant to the assessment of a grave risk upon the return of the child to the State of habitual residence. For example, past incidents of domestic or family violence may, depending on the particular circumstances, be probative on the issue of whether such a grave risk exists. That said, past behaviours and incidents are not per se determinative of the fact that effective protective measures are not available to protect the child from the grave risk.” [37] However, forward-looking does not mean that past behaviours and incidents cannot be relevant to the assessment of a grave risk upon the return of the child to the State of habitual residence. For example, past incidents of domestic or family violence may, depending on the particular circumstances, be probative on the issue of whether such a grave risk exists. That said, past behaviours and incidents are not per se determinative of the fact that effective protective measures are not available to protect the child from the grave risk.”

Returning to my summary of the law: j. 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 (Re IG (Child Abduction: Habitual Residence; Art 13(b))

[2021] EWCA Civ 1123

at [47(4)]). k. 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 (Re IG at [47(5)]). l. 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. (Re IG at [47(6)]). m. 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. (Re IG at [47(7)]). n. 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. (Re IG at [47[(8)]). o. 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. (Re IG at [47(9)]) p. The clearer the need for protection, the more effective the measures will have to be. (Re E at [52]).

The Child Objections Exception

[14]The law in relation to this defence was recently and helpfully summarised by MacDonald J in M v F (Article 13 Thresholds Not Met)

[2025] EWHC 2629 (Fam)

at para [22] et seq. “[22] The leading case on child's objections remains the judgment of Black LJ (as she then was) in Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal)

[2015] EWCA Civ 26

[2016] Fam 1

. [23] In evaluating whether the exception under Art 13 based on the child's objections is made out, the court will adopt a two-stage approach. The court will first examine whether, as a matter of fact, the child objects and has attained the age and degree of maturity at which it is appropriate to take account of his or her views. If that threshold is met, the court will then consider whether, in its discretion, to order the return of the child notwithstanding his or her stated objection. Within this two-stage analytical framework, the authorities enjoin the court to have regard to the following principles when applying that framework: i) The gateway stage should be confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. ii) Whether a child objects is a question of fact. The child's views have to amount to an objection before Art 13 will be satisfied. An objection in this context is to be contrasted with a preference or wish. iii) The objections of the child are not determinative of the outcome but rather give rise to a discretion. iv) Once that discretion arises, the discretion is at large. The child's views are one factor to take into account at the discretion stage. v) There is a relatively low threshold requirement in relation to the objections defence, the obligation on the court is to 'take account' of the child's views, nothing more. vi) At the discretion stage there is no exhaustive list of factors to be considered. vii) The court should have regard to welfare considerations, in so far as it is possible to take a view about them on the limited evidence available. viii) The court must give weight to Convention considerations and at all times bear in mind 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. ix) The court may have to consider the nature and strength of the child's objections, the extent to which they are authentically the child's 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 the child's welfare, as well as the general Convention. x) In applying these tests, the court is enjoined by the Court of Appeal not to adopt an over prescriptive, over intellectualised approach to the 'gateway' stage and not to adopt an over engineered approach to the 'discretion' stage [24] In considering Re M (Republic of Ireland: Child's Objections)

[2015] EWCA Civ 26

;

[2015] 2 FLR 1074

, and Re F (Abduction: Acquiescence: Child's Objections)

[2015] EWCA Civ 1022

, in P v S (Re C (1980 Hague Convention: Child Objections))

[2024] EWHC 1875 (Fam)

Cobb J (as he then was) re-emphasised that a child who has suffered an abduction will very often have developed a wish to remain in the "bubble of respite" that the abducting parent or relative will have created in the country to which the child has been taken. Within this context, the expression of the child's wishes cannot be said to amount to an objection unless there is a strength, a conviction and a rationality that satisfies the proper interpretation of Art 13.”

The Dispute

[15]Underlying both of the defences relied upon by the mother and Q are allegations of a lengthy pattern of domestic abuse, violence and control by the father. In her first witness statement the mother describes in considerable detail the history of her marriage to the applicant which she says has been characterised by violence and abuse from the outset. In his position statement in support of the mother’s case, Mr Hepher has confined himself to 19 examples taken from the mother’s statement. I do not consider that I need to descend into the detail of these allegations for the purpose of this judgment, not least because both the mother and her eldest daughter are in court and listening to me deliver this judgment. However, they include allegations of rape, of beating, of injuries, and of coercive and financial control. I have no doubt whatsoever that the allegations that the mother has made against the father can properly be characterised as domestic and sexual violence and abuse of an extremely serious type. The mother’s evidence is that her daughters not only witnessed the father’s abuse and violence towards her, but were also themselves direct victims of threats and of being hit and slapped by the father.

[16]These allegations are supported by corroborative evidence in a number of ways. There are photographs of injuries sustained by the mother and copies of hospital notes from 2020 and 2023 when the mother presented herself to A&E in Italy complaining that she had been assaulted by the father. In the 2020 incident, the eldest daughter, P (who would have been about 15 at the time) called the police to protect her mother. There are notes of police complaints filed by the mother in Italy in 2023 setting out the history of abuse she states that she had endured from the father, which led to a court order excluding him from the family home. However, it is common ground this complaint was ultimately dropped by the mother, she says following pressure from the father.

[17]P has provided a witness statement in support of her mother and sisters which confirms her mother’s account of the abuse that the family sustained at the father’s hands. She describes that over the years she called the police on multiple occasions, but no action was taken because the mother did not wish to pursue the complaints herself. She describes the father as shouting at her and speaks of trying to shield her sister Q from the violence, although she was not always successful. She also describes the indirect contact sessions that took place between the three daughters and the father from June 2025 onwards pursuant to orders of this court. P’s accounts of these sessions indicates that the father was interested only in his own ends, recording the conversations and stating that he would “make [Q] pay for previous comments she made once she returns to Italy”.

[18]For her part, Q has provided an account of her childhood to both the Cafcass officer, Ms Odze and to her own solicitor, Ms Coyle. She described her father to Ms Odze as a violent and abusive person stating “He was beating my Mum in front of our eyes. And when we were trying to intervene to stop him, he would start to beat us up as well.” Much of what Q describes accurately reflects incidents that her mother has also recounted in her evidence. Ms Odze identified that in relation to one incident Q’s account differed from that of her mother, although Mr Hepher argued that there were in fact two separate (but similar) incidents, one of which was described by the mother and the second of which was described by Q. Q also makes allegations (which do not feature in her mother’s statement) of inappropriate touching by the father of her and her sisters. She also repeated these allegations to Ms Coyle In her discussions with Ms Coyle she also referred to there being a lot of secrecy within the home because of a fear of the father and a lack of intervention from outside agencies. Ms Coyle records “[Q] did not discuss what was happening with anyone outside the home and told me that she was worried about what her father would do if she did tell anyone.”

[19]R (who at the time of her interview with Ms Odze was aged only 10) describes being scared of her father. She states:

“he used to beat up my Mum, my sisters and myself. Sometimes we tried closing the door, but he said clearly that he was going to hurt us, beat us up”

. She describes watching the father punch the mother in the mouth and in her stomach; and him attempting to strangle P and pull her hair.

[20]The mother’s position is also supported by an email that she sent to the father in October 2024 when she and the children left Italy for the UK. At this time the father had been in country B for around four months, and the mother’s position is that she did not know when he would be returning and that she and the children had been effectively abandoned by him. She had heard that he had in fact gone there to remarry in the hope of having another child. She refers to the father’s actions towards her and their daughters as “torture” stating “I want them to be free from you and your medieval ideas, so I’m leaving with my daughters to a faraway place where they can breathe freely and not be oppressed by someone like you.”

[21]The father’s case is that all this is either untrue or exaggerated. However, he has not sought to address the substance of the allegations against him in any detail. Instead, the totality of his case on this point is confined to two paragraphs in his third witness statement of 24 June 2025 which I will set out in their entirety. “In relation to all of the allegations that the Respondent has raised against me whilst we were in country B, I vehemently deny every and all allegations in their entirety. In relation to all the allegations that the Respondent has raised against me whilst we were living in Italy are not completely true and the Respondent does not provide a complete picture of our relationship. I admit that we both behaved very badly towards one other and there were occasions of domestic violence to one another, including verbal fights, police intervention and physical altercations which required both of us to seek medical attention.” In relation to all the allegations that the Respondent has raised against me whilst we were living in Italy are not completely true and the Respondent does not provide a complete picture of our relationship. I admit that we both behaved very badly towards

one other and there were occasions of domestic violence to one another, including

[22]In considering the Art 13(b) defence I am required to consider also the situation to which the children would return and the proposed protective measures that are being offered.

[23]In a witness statement dated 24 June 2025 the father offered a suite of protective measures as follows:

“a. To pay the costs of the children’s flights and the cost of transporting their luggage. b. Not to institute or voluntarily support any proceedings, whether criminal or civil, for the punishment of the Respondent arising out of the circumstances giving rise to these Hague Convention 1980 proceedings. c. On the basis of no admissions, not to use or threaten, or encourage anyone else to use or threaten, abuse against the Respondent. d. Not to remove the children from the Respondent’s care and custody until further order of the Italian courts. e. Not to attend the Respondent’s place of residence without prior agreement. f. Not to take the children to country B without the Respondent’s or the children’s consent, or permission from the Court. g. To lodge the Return Order and Protective Measures with the Italian Court prior to the children’s return. h. To provide written confirmation of the school places available for the children upon their return to Italy. i. To pay child maintenance to the Respondent of 500EUR per month until the earlier of (1) 3 months; or (2) a first hearing of a relevant family court in Italy. j. To pay the Respondent 1,000EUR per month: 500EUR towards rent for their property and a further 500EUR towards, bills and anything else the children may need such as clothing and school expenses, until the earlier of (1) 3 months; or (2) a first hearing of a relevant family court in Italy. To confirm, this payment is in addition to Child Maintenance payment detailed in paragraph 5(i) above.”

[24]In a further witness statement dated 31October 2025 the father confirmed that the level of support that he proposed “remained the same” and indeed Ms Harrington cross-examined Ms Odze on this basis. However, following a further opportunity to take instructions from her client over lunch, in her closing submissions Ms Harrington informed the court and other parties of a fundamental alteration in her client’s position, namely that he was not in a financial position to offer any of the financial support that he had previously offered and that he would therefore not be offering anything for either the mother or children’s rent or subsistence in Italy. Instead, what he now proposes is that he will give one month’s notice to the family currently occupying the matrimonial home in Italy and that the mother and children should return to live at that property. However, he offers nothing in respect of any financial support and does not explain who would be responsible for the outgoings on that property.

[25]No explanation is provided as to this change of position and I am extremely concerned that the father was prepared to sign a witness statement confirming that he was prepared to provide this level of support as recently as last week. I am driven to the conclusion that the father was previously prepared in his written evidence to put forward proposals that he knew he was not in a position to fulfil, and this leads me to have considerable doubt as to the weight I can place on the other protective measures that the father still asserts he can provide.

[26]I am entirely satisfied that taking the allegations that have been raised by the mother and the children at their highest, a grave risk of physical and psychological harm will exist if I order the return of the younger children to Italy. Ms Odze is clear that the children have themselves been direct victims of domestic abuse and violence both through the violence and abuse that has been personally directed at them, but also through witnessing the abuse that has taken place between the parents. I accept that I am not in a position, given the summary nature of these proceedings, to make findings of fact in relation to these allegations. Nonetheless, when I contrast the significant detail of the mother’s extremely serious allegations and the corroborative evidence that accompanies them with the cursory efforts that have been made by the father to set out a competing version of events, I am left in no doubt that for the purpose of considering the Art 13(b) defence the high threshold for establishing a grave risk of physical and psychological harm has been made out in this case. I make clear that I wholly reject the argument made by Ms Harrington, on instructions, that the evidence does not meet that threshold.

[27]I turn then to consider whether that risk can be ameliorated by the protective measures that have been proposed by the father. I do not consider that it can be. First, although the father says that he is willing to give an undertaking not to voluntarily support proceedings for the punishment of the mother in Italy, he has already made police complaints alleging that the mother stole jewellery and domestic appliances when she and the daughters fled to the UK and “insisting” that his wife be “punished” for the removal of his daughters. Given this attitude and the weight that I have already concluded I can give to the protective measures he offers, I have little confidence that he would abide by this.

[28]In any event, I have also been provided with expert evidence from Advocate Roberta Ceschini on matters of Italian Law and her evidence is that irrespective of the attitude of the attitude of the father, there is a 50% chance that the Italian Police would pursue criminal proceedings for abduction against the mother if she returns to Italy.

[29]Although Ms Ceschini confirms that undertakings given to this court can be registered with the Italian court so as to make them enforceable in Italy, I am concerned not only with the enforceability of the undertakings, but also with their effectiveness. Here, I note that Ms Ceschini identifies that it could take some 3-4 months before the father’s undertakings would be registered (and thus enforceable in Italy). Moreover, I have considerable doubts about the effectiveness of the proposed undertakings in the current case.

[30]Under the father’s revised proposals, the situation on the ground that will be faced by the mother and younger children, is that they will return to the matrimonial home. This is a place that they fled just over a year ago and which has, on both parents’ case, been the scene of domestic violence that has been witnessed by the children and which (on the mother and Q’s case) is the place where the father has been exerting abuse and control over the family for a long period of time. Given Ms Odze’s view that these children had experienced trauma through the abuse they sustained and witnessed at home, requiring them to return to the scene of that trauma clearly contributes to the risk of harm.

[31]There is also extremely strong and cogent evidence of the father seeking to exert control over the mother and their daughters, not just during their time in Italy, but also during the currency of these proceedings as well. P’s evidence of the contact sessions that have taken place with the father is that he used these for the purpose of telling the children what to do and how to behave, and there is evidence that the father is seeking to use these proceedings as punishment for the mother. His reports to the Italian police following the children’s removal to England refer to a wish to secure her punishment. I have also been shown a screenshot of a virtual court hearing in these proceedings and which I am told that the father has circulated to members of the wider family to misrepresent to them that these proceedings are some form of punishment for the mother. I have indicated to Ms Harrington that I will deal with what appears at first blush to be a clear contempt of court at the conclusion of this matter.

[32]All this behaviour is, in my judgment, indicative of a wish by the father to continue to exert control over the mother and children and his revised proposal that they should move back to the family home is a further example of this behaviour.

[33]Moreover, the protection that the Italian Police and authorities will be able to provide to the mother and children will, of necessity, be reactive. The father will know, and will be controlling, where they live. Even if injunctions and the equivalent of non-molestation orders are in place, the family would be aware that the father knows where they are and could turn up uninvited, leaving it to the police to react after the event. The provision of rent (as previously offered) would have enabled the mother to rehouse herself in circumstances where the father was not aware of her and the children’s address. The change in the father’s position enables him to assert greater control over the family. I note also that he has been warned about his behaviour in the past, but appears to have continued with the with abuse notwithstanding these warnings.

[34]In terms of other factors, the father is now unable to offer any financial support to the family. The mother’s evidence is that she would not qualify for the equivalent of housing benefit in Italy and that the only financial support that she could potentially access would be a form of child benefit ranging from between €57.50 to €201 per month per child. She also gives evidence about attempts by the father to access funds from her post office savings account in Italy. There is nothing said by the father in his proposed protective measures about the arrangements that would be made for the children’s school places.

[35]A further factor to consider is the position of the eldest daughter, P. It is clear that she in the past has been an important protective factor for both her mother and younger siblings, demonstrating courage in challenging the father and calling the police when incidents have arisen. However, she is aged 20 and outside the scope of the Hague Convention. She has begun an undergraduate course at a UK university and whatever I decide in relation to her younger siblings she will not be returning with them. In my view her absence from the household, if I direct a return to Italy, heightens the risk to the mother and her younger siblings and accentuates the inadequacy of the protective measures proposed by the father.

[36]In my judgment, the protective measures that the father is proposing fall far short of what would be required to address the grave risk of harm that arises on the evidence in this case. I am satisfied that the mother and Q have satisfied the Art 13(b) defence and that I should therefore dismiss the father’s application.

[37]Although there have been some suggestions that the mother would not return to Italy with the children, Mr Hepher did not ultimately put his case on that basis. However, were she to refuse to return (so that the only option would be for the younger children to live with their father) I should record that (and in particular in the light of the allegations of inappropriate touching identified by Q) I consider that no protective measures could be capable of meeting the obvious grave risk that would arise in that situation.

Child Objections

[38]Although the Art 13(b) defence is itself sufficient to lead to the dismissal of this application, I will now turn to the child objections defence that is being pursued in respect of both children. I am also satisfied that this is made out, and I would dismiss the application on this ground as well.

[39]First, it is entirely clear from Ms Odze’s report, and in the case of Q from the evidence of Ms Coyle as well, that both Q and R object in Convention terms to being returned to Italy. Indeed Q’s position is that she will refuse to comply with any return order. Q is nearly 14 and a half, and R has recently turned 11. Ms Odze was of the view that their objections to a return Italy were authentically their own and based on their own experiences of their life in that jurisdiction and they were not being influenced by their mother in their position. Both children were able to identify that there were aspects of their life in Italy that they liked and enjoyed, but both were clear that they objected to be returned to live there in circumstances where there was any risk of being exposed to the father. Having considered Ms Odze’s evidence I am satisfied that both Q and R are of an age and maturity at which it is appropriate to take account of their views. I am also satisfied that the views expressed by both Q and R are authentically their own and are in both cases strongly held. Indeed in Q’s case her views are sufficiently strongly held that she has instructed a solicitor to represent her and, through her, is telling the court that she will not return. I am satisfied in the case of both children that these are genuine objections and not simply a “preference”.

[40]In those circumstances the Court’s discretion as to whether to order a return arises and is at large.

[41]In applying that discretion I am required to give weight to Convention considerations and bear in mind 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. I accept that these are children who had lived all of their lives in Italy and to that extent Italy is their “home” country. All other things being equal, I accept that the Convention would point towards me ordering a return.

[42]However, here, I do not consider all other things are equal. First the prima facie evidence of a history of domestic violence, abuse and coercive control, even if I am wrong and this is if not itself sufficient to make out an Art 13(b) defence, is powerful contextual evidence to explain the children’s objections, and means that I am justified in placing substantial weight on their wish to avoid a return.

[43]This is far from being a “hot pursuit” case. The children have been living in the UK for over a year and any opportunity for a prompt welfare hearing before the Courts of Italy has been lost. On behalf of Q, Ms Papazian had made enquiries of the father’s representatives as to whether any proceedings in relation to the children were on foot in Italy and this was not something they were able to confirm. Moreover, the father accepts in his most recent statement that the children’s “life is now firmly placed in the UK”, although I make clear that I recognise that this is not a case where it is open to the respondents to run a “settlement” defence under At. 12 of the Convention. Indeed this is, unusually, a case where, even the applicant has moved to the UK, and given up his home in the country of habitual residence.

[44]Looking at the position as a whole, Q is expressing a clear and forceful wish not to be returned to Italy. She has been living in this country for over a year and has attained a degree of stability here, attending school and building a new family life alongside her mother and sisters. Whilst recognising the limits of the conclusions that I can reach in the context of summary proceedings where I have not heard oral evidence from either parent, I am able to contrast the level of detail and corroborative evidence provided by the mother in support of her allegations with the bare denial presented by the father and I consider that this provides a cogent explanation for Q’s views. At fourteen and a half she is of a sufficient age that I should give significant weight to her views, and that fact that they are consistent, clearly expressed and are aligned with the evidential picture that has been provided to the court means that I have concluded that I should give effect to them.

[45]Although R is younger and her views are perhaps, not as forcefully articulated as those of her sister, I consider that they too should be respected. The overall evidential picture which I have recited above means that there is no reason for me to distinguish between the position of the two girls, and I could not countenance separating the siblings and making a return order in R’s case in circumstances where I was not willing to direct Q’s return.

[46]Accordingly, for the reasons set out above, the father’s application is dismissed.

[47]I will circulate a perfected version of this judgment to counsel. I therefore direct that there is no need for a separate transcript of this judgment to be prepared. The approved judgment, when circulated, should be translated into Language X for the benefit of the parents and into Italian for the authorities in that jurisdiction.

[48]That is my judgment. ************