KRM v VWT [2025] EWHC 3082 (Fam)

[2025] EWHC 3082 (Fam)Case No FD25P00469
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 November 2025
Before
SIMON COLTON KCSITTING AS A DEPUTY HIGH COURT JUDGE
Between
KRMApplicantVWTRespondent
Christopher Hames K.C.and Harry Langford (instructed by Philcox Gray Solicitors) for Applicant FatherRuth Kirby K.C.and Clarissa Wigoder (instructed by McAlister Family Law) for Respondent MotherHearing Hearing dates: 17-18 November 2025
Approved Judgment
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 Simon Colton KC:Introduction
[1]The principal application before me concerns three children aged 6, 3 and 2 (‘the elder children’). In early 2025, they were living with their mother and father in Australia. With Father’s consent, Mother brought the elder children to England for a holiday, staying with Mother’s family. On 12 February 2025, the date on which they were supposed to return to Australia, Mother messaged Father to inform him that they were not returning that day. There is no dispute, and I am satisfied, that this was wrongful retention for the purposes of Article 3 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the ‘Hague Convention’), in breach of Father’s rights of custody. Nor is there any dispute that the elder children were habitually resident in Australia immediately before this wrongful retention. Accordingly, Father is entitled to a summary return order, unless Mother can establish one of the narrow exceptions. Mother argues that the Article 13(b) exception is made out, namely that the elder children would be at grave risk of harm if they were to be returned to Australia. That is the first issue I must consider.[2]In addition, however, I must consider a more unusual application. Mother was pregnant when she brought the elder children to England, and has since given birth to a daughter, to whom I shall refer as ‘Lois’. Two weeks before this final hearing of the Hague Convention application, Father issued a further application under which he sought what he describes as a summary return order under the inherent jurisdiction – an order that Lois be ‘returned’ to Australia, a place she has never been and where, as is common ground, she is not and has never been resident (the ‘Lois application’). Mr Hames K.C. on behalf of Father made clear that Father is not seeking any final decision as to Lois’s care or welfare; Father seeks only an order that Lois be ‘returned’ to Australia, so that the Australian courts can conduct a full welfare assessment of her best interests alongside those of the elder children.[3]After this judgment was handed down, a further issue arose as to whether, after I decided a return order should be made, I still had jurisdiction to order interim contact between Father and the elder children. I deal with this issue in a post-script, beginning at paragraph 68 below.

The background facts

[4]The applicant Father is Australian, and the respondent Mother is English. They met in 2017 while holidaying in New Zealand. In late 2017, Mother moved to Australia to live with Father. In late 2018, they came to England for a visit, and their eldest son was born here. Father returned to Australia in December 2018, with Mother and child returning a couple of months later. In February 2022, their second child, a girl, was born in Australia. In June 2023, their third child, a boy, was born in Australia.[5]Throughout the elder children’s lives, with the exception of short periods, they have lived with both parents. Mother has been their primary carer, while Father was the primary earner, although Mother also earned. The elder children hold both English and Australian nationality, and Mother has permanent resident status in Australia.[6]As I have indicated, in January 2025 Mother and the elder children travelled to England for a planned holiday. Mother was about 5 months pregnant at this time. They remained here after the intended return date of 12 February 2025. As I have indicated, it is common ground that Mother wrongfully retained the elder children from that date.[7]Father came to England in late March hoping to see his children. He was not welcomed by Mother. There is a dispute as to what occurred when he went to the property where Mother is living with the children near her extended family, which I need not resolve. Following that incident, on 14 April, Mother obtained, without notice to the Father, a non-molestation order against him. Father returned to Australia on 16 April. At the return date on 13 May, the non-molestation order was discharged by consent, on Father undertaking to give Mother seven days’ notice of any return to the United Kingdom.[8]Lois was born in May 2025. Mother did not inform Father of the birth, but within three days sought a ‘lives with’ child arrangements order, and a prohibited steps order preventing the removal of any of the children from the jurisdiction.[9]Father issued the Hague Convention application in respect of the elder children in June 2025. Mother remains living with the four children in a property near her extended family.

The Article 13(b) exception

(b) exception The law

[10]Article 13 provides that: 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.[11]The leading authorities on the scope of the Article 13(b) exception remain the decisions of the Supreme Court in Re E (Children: Custody Appeal)[2011] UKSC 27, [2012] 1 AC 144 (‘Re E’) and Re S (A Child) (Abduction: Rights of Custody)[2012] UKSC 10, [2012] 2 FLR 442 (‘Re S’). In the former case, Baroness Hale and Lord Wilson noted (at [32]-[36]) that the burden of proof lies on the person who opposes the child’s return to make good the exception, within the limitations of a summary process; that the risk to the child must be ‘grave’, which is a function of both the likelihood of such risk eventuating, and the seriousness if such risk were to eventuate; that Article 13(b) is looking to the future, and specifically the situation the child would be in if the child were to be returned forthwith to their home country. Baroness Hale and Lord Wilson adopted the earlier dictum that ‘intolerable’ means ‘a situation which this particular child in these particular circumstances should not be able to tolerate’. They observed: Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself.[12]Baroness Hale and Lord Wilson approved, as part of the court’s general process of reasoning (see Re S at [22]) a two-stage process, under which the court first asks whether, if the allegations were 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; and then, if there would be such a risk, how the child can be protected against such risk(s).[13]In assessing whether there is a grave risk of harm, the court does not make findings of fact. Rather, the court makes reasoned and reasonable assumptions with respect to the maximum level of risk, having regard to the nature, detail and substance of the allegations made: In Re A (Children) (Abduction: Article 13(b)) [2021] EWCA Civ 939, [2021] 4 WLR 99 at [94].[14]A particular issue raised in this case is the possibility that if a return order is made, and Mother accompanies the children to Australia, that would lead to the deterioration of Mother’s mental health, in turn causing a grave risk of harm to the children. If this is so, it does not matter why such deterioration would result. In Re S, Lord Wilson explained at [34]: The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned.[15]A further issue arising in this case concerns Mother’s indication that, if the elder children were returned to Australia, she would refuse to accompny them. In R (Child Abduction: Parent’s Refusal to Accompany) [2024] EWCA Civ 1296, [2025] 1 FLR 1225, Peter Jackson LJ held that: 36. Drawing matters together, Art 13(b) requires the parent opposing a child’s return to establish that there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Where that parent asserts that they will not accompany the child to return, the court will scrutinise the assertion closely, because it is an unusual one for a main carer of a young child to make. The court will therefore make a reasoned assessment of the degree of likelihood of the parent not returning. Relevant considerations will no doubt include the overall circumstances, the family history, any professional advice about the parent’s health, the reasons given for not returning, the possibility that the refusal is tactical, and the chance of the position changing after an order is made. The court will then factor its conclusion on this issue into its overall assessment of the refusing parent’s claim to have satisfied Art 13(b). By this means, it will seek to ensure that the operation of the Convention is neither neutralised by tactical manoeuvring nor insufficiently responsive to genuine vulnerability. … 38. The summary assessment of whether a parent is likely to return and how they will react to the court's decision will not always be easy, and a reasoned conclusion is unlikely to be disturbed on appeal. In some of the above cases, conclusions were expressed as findings of fact, made on a balance of probabilities. That was unobjectionable in the individual cases, but in assessing the likelihood of a parent not returning, the court is not addressing a binary issue of fact (such as consent: see Re W at [58]). Instead, it is asking whether, factoring its assessment on this issue into the evidence as a whole, that parent has established an Article 13(b) grave risk to the child if a return order is made. In that context, the court is assessing likelihood on a summary basis, not finding facts.[16]As regards proposed protective measures, these must be effective.(1) As Baroness Hale said in Re D (a child) (abduction: rights of custody) [2006] UKHL 51, [2007] 1 All ER 783, 803d at [52]: [I]t has to be shown that those arrangements will be effective to secure the protection of the child. With the best will in the world, this will not always be the case. No one 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.(2) In In re T (Child) [2023] EWCA Civ 1415, [2024] 1 WLR 2896 at [45] and following, Cobb J made five points about protective measures. These included, as item (iii), ‘The need for the court to be satisfied, when necessary for the purposes of determining whether to make a summary return order, that the proposed protective measures are going to be sufficiently effective in the requesting state to address the article 13(b) risks’; as item (iv), ‘The status of undertakings concerning protective measures, and their recognition in foreign states’; and, as item (v), ‘The distinction between ‘protective measures’ and ‘soft landing’ or ‘safe harbour’ provisions’.[17]In addition to the above, in considering the various elements of the Article 13(b) exception, I am assisted by the Guide to Good Practice under the Hague Convention, published in 2020 by the Hague Conference on Private International Law. As Moylan LJ held in Re C (A Child) (Child Abduction: Parent’s refusal to return with child) [2021] EWCA Civ 1236 at [51]:
‘The Guide is an important resource and the task of a judge in these difficult and complicated cases may well be supported by reference to it.’
The Guide to Good Practice includes the following, under the general heading of ‘Examples of assertions that can be raised under Article 13(1)(b): 55. An Article 13(1)(b) analysis is highly fact-specific. Each court determination as to the application or non-application of the exception is therefore unique, based on the particular circumstances of the case. A careful step-by-step analysis of an asserted grave risk is therefore always required, in accordance with the legal framework of the Convention, including the exception as explained in this Guide. However, courts must be mindful of the Convention’s requirement to decide cases expeditiously. … a. Domestic violence against the child and / or the taking parent 57. Assertions of a grave risk resulting from domestic violence may take various forms. The taking parent may claim that there is a grave risk of direct harm because of physical, sexual or other forms of abuse of the child. It may also be asserted that the grave risk results from the child's exposure to domestic violence by the left-behind parent directed to the taking parent. In some situations, the grave risk to the child may also be based on potential harm to the taking parent by the left-behind parent upon return, including where such harm may significantly impair the ability of the taking parent to care for the child. 58. The specific focus of the grave risk analysis in these instances is the effect of domestic violence on the child upon his or her return to the State of habitual residence of the child, and whether such effect meets the high threshold of the grave risk exception, in light of such considerations as the nature, frequency and intensity of the violence, as well as the circumstances in which it is likely to be exhibited. Evidence of the existence of a situation of domestic violence, in and of itself, is therefore not sufficient to establish the existence of a grave risk to the child. 59. In cases where the taking parent has established circumstances involving domestic violence that would amount to a grave risk to the child, courts should consider the availability, adequacy and effectiveness of measures protecting the child from the grave risk. Where legal protection and police and social services are available in the State of habitual residence of the child to assist victims of domestic violence, for example, courts have ordered the return of the child. In some instances, however, courts may deem such legal protection and services to be insufficient to protect the child from the grave risk, for example where the left-behind parent has repeatedly violated protection orders, which may put the child at grave risk of physical or psychological harm, or given the extent of psychological vulnerability of the child. b. Economic or developmental disadvantages to the child upon return 60. Where assertions of grave risk based on economic or developmental disadvantages upon the return of the child are made, the analysis should focus on whether the basic needs of the child can be met in the State of habitual residence. The court is not to embark on a comparison between the living conditions that each parent (or each State) may offer. This may be relevant in a subsequent custody case but has no relevance to an Article 13(1)(b) analysis. More modest living conditions and / or more limited developmental support in the State of habitual residence are therefore not sufficient to establish the grave risk exception. If the taking parent claims to be unable to return with the child to the State of habitual residence because of their difficult or untenable economic situation, e.g., because his / her living standard would be lower, he / she is unable to find employment in that State, or is otherwise in dire circumstances, this will usually not be sufficient to issue a non-return order. In particular, dependency on State benefits or other institutional support does not in itself amount to a grave risk. Only very exceptional circumstances might lead to a grave risk to the child. Where circumstances have been established that would amount to a grave risk, courts may consider whether protective measures can protect the child from such risk, such as the provision of some urgent financial assistance for the short-term period until the court of competent jurisdiction in the State of habitual residence can make any necessary orders. … e. The child's separation from the taking parent, where the taking parent would be unable or unwilling to return to the State of habitual residence of the child 63. Assertions of grave risk of psychological harm or of being placed in an intolerable situation resulting from a separation of the child from the taking parent when this parent is unable or unwilling to return are frequently raised in return proceedings in a wide range of circumstances. Judicial decisions from numerous Contracting Parties demonstrate, however, that the courts have only rarely upheld the Article 13(1)(b) exception in cases where the taking parent cannot or will not return with the child to the child’s State of habitual residence. 64. The primary focus of the grave risk analysis in these instances is the effect on the child of a possible separation in the event of an order for return or of being left without care, and whether the effect meets the high threshold of the grave risk exception, taking into account the availability of protective measures to address the grave risk. The circumstances or reasons for the taking parent’s inability to return to the State of habitual residence of the child are distinct from, although they may form part of, the assessment of the effect on the child of a possible separation. Application of the law to the facts Assessing the risk

Application of the law to the facts

[18]Mother alleges a number of different strands of risk, which cumulatively are said to give risk to a grave risk within the meaning of Article 13(b). As expressed in Mother’s skeleton argument: There are four elements to her defence on these facts, namely that a return would:a. firstly, expose the children to a grave risk of harm by way of exposure of their mother to domestic abuse by their father;b. secondly, expose the children to a grave risk of physical and psychological harm if in the care of their father;c. thirdly, place the children in an intolerable situation because of the risk to them caused by a deterioration in their mother’s mental health if she were to return with them to Australia and/or due to separation from their sister Lois; and/ord. fourthly, would place the children in an intolerable situation if they travel to Australia without their mother and are separated from her and/or their younger sister, Lois.

There are four elements to her defence on these facts, namely that a return would:

[19]I begin by taking each of these strands of the Article 13(b) defence separately.

Domestic abuse

[20]Mother’s case is that, during their relationship, Father subjected her to domestic abuse, including coercive and controlling behaviour, emotional abuse, financial abuse and sexual abuse. In Mother’s skeleton argument, thirty indicative examples of this alleged abuse were identified, but these are themselves only a summary of allegations covering 70 paragraphs over 14 pages of Mother’s first witness statement. These allegations include allegations of abusive behaviour by Father towards Mother in the presence of the elder children.[21]Father, who denies the allegations made by Mother, does not contend that Mother’s allegations can safely be discounted. I accept, therefore, that if effective protective measures are not put in place, and Mother accompanies the elder children to Australia, the risk of a repetition or continuation of the domestic abuse alleged, including in the presence of the children, would put the children at grave risk of harm both directly and indirectly.

Father putting the children at direct risk of harm

[22]Separate to the allegations of domestic abuse, Mother alleges that Father has put the elder children at direct risk of harm. This could be particularly significant if the elder children were to return to Australia without Mother. Indeed, Mother contends that the risk of harm to the elder children would be so great if they were to be put into the care of their Father, that if a return order were to be made, the children would need to be placed in foster care in Australia.[23]In support of this contention, Mother alleges that, despite Father’s significant vision impairment, he would ‘often place [the children] on the back of [a] pedal bike when riding in public and they would not have helmets on’. She says Father once drove the eldest child in a gulf buggy on a public road. He would run the bath for the children using only hot water. He told the eldest child ‘that he was his favourite child and cause a clear division between the children for no reason’. He once shouted at the eldest child, then aged 6, to ‘get your shit together’. Mother says that Father refused to fund an autism assessment for the eldest child, and did not understand the importance of routines for children.[24]Taking these allegations together, I do not consider that, if the children were to be placed in the care of Father they would be at such risk of harm that they would need to be placed in foster care.(1) I am alert to the possibility that isolated incidents may be indicative of a more significant problem, but, nevertheless, it does not seem to me that these incidents reach the standard of Father’s parenting presenting a grave risk of harm to the elder children. In particular, I have in mind that, despite Mother’s concerns, there is no evidence that any of the elder children have in fact suffered significant physical, emotional or psychological harm from Father’s behaviours.(2) I also have in mind Father’s evidence as to the practical and emotional support he has in place, or would have if the elder children were to live with him. Father is entitled to practical support as part of his plan under the National Disability Insurance Scheme (NDIS). He has a housekeeper, and can have someone who can prepare meals and is able to receive 50% off driver and taxi services. His evidence in June was that he was actively exploring the option of engaging a live-in au pair or part-time nanny, and restructuring his business so that he can limit his work to 9am to 3pm, so that he available to care for the children outside those hours. He has neighbours who can provide some support, and family who live nearby including two of his brothers and their wives, and Father’s mother.

Deterioration in Mother’s mental health

[25]Mother says that, if she were to return to Australia with the elder children, her mental health would deteriorate such as to put the elder children at risk that she could no longer care for them safely.[26]I do not consider that this strand of Mother’s case is supported by the evidence.[27]I received a psychiatric report on Mother prepared by a consultant psychiatrist, Dr Sumi Ratnam. Dr Ratnam was hindered by the absence of medical records from Australia which Mother had been instructed to produce. Dr Ratnam noted that Mother’s description of her own mental health was not consistent with the UK maternity records, in which on various dates between March and June 2025 Mother denied feeling down, depressed or hopeless. Dr Ratnam’s opinion is that Mother fulfils criteria for a diagnosis of depression, and of generalised anxiety. Dr Ratnam took the view that it was ‘not possible to predict the extent of deterioration but [Mother’s] account indicated that her mental health has impacted on her parenting in this country’. However, as an indication of the limited risk which Dr Ratnam perceived, Dr Ratnam considered that the mental health interventions proposed by Father as protective measures were appropriate, and made no recommendations for any additional interventions.[28]For these reasons, in my judgment, Mother has not made out her case that the children would be at grave risk of harm by reason of a deterioration in her mental state if they were to live with her in Australia.

Separation from Mother and from Lois

[29]As I have held, the evidence does not, in my judgment, support the conclusion that if Mother were to accompany the elder children to Australia, her mental health would by likely to so deteriorate that she would be unable to care for the children safely. However, I accept that a fear of such deterioration would be a reason why Mother might not return. Indeed, Mother says that if a return order is made in respect of the elder children, she would not return to Australia with them.[30]As was noted by Moylan LJ in R (Child Abduction: Parent’s Refusal to Accompany) (see paragraph 14 above) it is unusual for the primary carer of a young child to choose not to accompany a child who is ordered to return. Nonetheless, Mother’s witness evidence is unambiguous. She says in her statement from August 2025: It breaks my heart to think of the children being placed in that situation, but I do not have the mental strength to return to Australia and I will simply be unable to cope with life in Australia due to my mental health and my fear of [Father] given the way in which he has treated me…. I fear that if I return, this would lead to a severe decline in my mental health which would ultimately impact the children far worse than if they were to be looked after by the state. …I simply do not have the mental strength to return to Australia with the children, without any support at all, to then face continual abuse, pressure and control from [Father] and ongoing uncertainty, including financial uncertainty, together with Court proceedings Australia.[31]Moreover, there is the particular position of Lois. In Mother’s most recent statement, from last week, she said this: [Father] appears to insinuate that I wish for my children to be separated. To be clear, I do not want any of my children to be separated, and I am heartbroken that I am even having to consider this. Sibling relationships are incredibly important, and all four of my children share a special bond with on another. [The elder children] absolutely love [Lois], despite all being very young themselves, and [Lois] is always giggling and smiling at her older siblings. I have been placed in an impossible situation, and it is not a decision I have arrived at lightly, but I cannot and will not subject [Lois] to the same suffering that me and my other children have had to endure at the hands of [Father], even if that means separating her from her siblings. No matter what happens, I have no intention for [Lois] to go to Australia. She has a loving and caring home here in the UK, and a particularly close bond with my mother. I have found it difficult to bond with [Lois] with everything that has gone on, but it does not mean that I do not love her and care for her deeply. It is because of that love and placing her needs first that I can categorically say whatever happens in the Hague proceeding with my eldest three children, [Lois] will remain in the UK. My mother is better placed to care for [Lois], as it would be impossible to work having a six month old and it would not be in [Lois]’s best interests not to be in one adult's care whilst she is so young.[32]If Mother’s stated intention regarding Lois is right, this provides a further reason why Mother might not return with the elder children to Australia. Mother would be in the invidious position of choosing between separating from her 6 month old child, or separation from her three elder children (who are themselves only aged 6, 3 and 2).[33]Nonetheless, the evidence that Mother would not accompany the elder children to Australia if the elder children were returned there is not all one way. When Mother was interviewed by Dr Ratnam in mid-October 2025, some time after her August statement, Mother’s position was much more ambivalent than it had been. Mother said she did not know if she would go to Australia if the elder children returned (‘I’m just hoping they don’t go… maybe someone else can go with them’), and said she found it hard to think about this possibility. That strikes me as realistic: Mother may not really know what she wants to do until after any decision is made.[34]Mr Hames K.C. on behalf of Father submits that Mother’s stated intention not to return to Australia is ‘an entirely tactical decision’. I consider there is likely to be at least an element of that here. I do not doubt that Mother would much prefer to remain in the UK, with all her children and her extended family. With that objective, she has shown herself, in my judgment, to be willing to act tactically. She has sought to separate the elder children from Father, and diminish his role in their lives. She issued an application for a child arrangements order regarding all four children within just a few days of giving birth to Lois, and without even informing Father of the birth. Mother named Lois, including giving her a different surname to her siblings, without consulting Father. I regard the submission that the elder children would need to be in foster care if they were to return to Australia as being overblown, and intended to minimise the prospect of a return order being made. And, Mother has criticised Father for being uninterested in contact with the children since she came to the UK, when the contemporaneous messages between Mother and Father do not support such criticism. Though there were ongoing communications between Mother and Father, apparently civil, when Father called multiple times on the second child’s birthday, Mother did not take his call. Father repeatedly sought to discuss contact with the children, but Mother did not respond. Although Mother has complied with court orders concerning contact between the children and their Father, she did little or nothing to promote such contact before being ordered to do so.[35]Overall, I remind myself that I am not making a finding of fact regarding what Mother would do if a return order were made in respect of the elder children, I am only assessing the degree of likelihood of Mother not returning, and the impact of that decision on the elder children if she were so to decide. Similarly, I am not deciding whether, if Mother did return to Australia, she would leave Lois behind, but only the likelihood of that, and the impact of that on the elder children.[36]Taking matters in the round, I consider that, if no effective protective measures were in place, it is likely that Mother would not return with the elder children, and Lois would remain in the UK (subject to the Lois application, to which I turn later). I accept that, absent any protective measures, Mother would not wish to return to Australia where she would have no family support, and, at least in the immediate term, would be dependent on the goodwill of Father for accommodation and financial support. The elder children would therefore be separated from their Mother and from Lois, for the first time in their lives. For the second and third children, this would mean ending their breastfeeding which has recently reduced but still continues at night, on occasion.[37]However, I do not consider that this likely separation from their Mother, or from Lois, would be such as to constitute a grave risk within the meaning of Article 13(b). The elder children would not be left without care in Australia, as they could be cared for by Father, with whom they had always lived until they were wrongfully retained in the UK, in the family home with which they are familiar. While separation from their Mother would of course cause distress, especially as Mother is, and has always been, their primary carer, this would not be, in my judgment, be such as to amount to a situation which they should not be able to tolerate. The elder children would be in a country where Mother has permanent resident status. They would of course miss their baby sister, but again, in my judgment, this would not, even in combination with their separation from their Mother, amount to a grave risk of harm.

Conclusion on assessing the risk

[38]For these reasons, I consider that the allegations of domestic abuse against Mother (on which, of course, I make no finding of fact) would, if Mother were to return to Australia with the elder children, present a grave risk to them within the meaning of Article 13(b). I do not consider, by contrast, that Mother has established that living with Father, if Mother chose not to return to Australia, would present a grave risk of harm to the elder children. I consider that there is a significant prospect that, absent protective measures, there is a likelihood that Mother and Lois would not accompany the elder children to Australia, but I do not consider that that would present the elder children with a grave risk of harm. Overall, however, given the uncertainties that surround these various risks, I cannot confidently discount the possibility that – absent effective protective measures – the elder children would suffer a grave risk of harm if they were to be returned to Australia.

Managing the risk: the effectiveness of protective measures

[39]The protective measures and ‘soft landing’ measures offered by Father by way of undertaking were summarised in his skeleton argument as follows:a. on a without admissions basis, that the father will not use or threaten violence against the mother, not to intimidate, harass and pester her, not to make any threatening or abusive calls to the mother, and not to send her any threatening or abusive letters, messages, voicemail message or other communication to the her, or instruct or encourage any other person to do so;b. not to remove the children from the mother’s physical care or the children’s school, nursery or preschool without the mother’s consent or permission of the Australian court;c. not to enter or attempt to enter any accommodation at which the mother and the children may be living on their return, unless agreed by the mother or otherwise ordered by the Australian court;d. not to have contact with the children unless agreed with the mother or ordered by the Australian courts;e. not to attend the airport on the date that the mother and the children return;f. not to start or support any proceedings in Australia, whether criminal or civil, which could result in the imprisonment or punishment of the mother in respect of any matters arising out of her wrongful retention of the children in the UK;g. to provide the mother with a lump sum payment of $5,000AUD when the father has confirmation that she and the children have arrived in Australia, along with an additional lump sum of $3,500 to cover expenses for the mother and the children until she begins to receive state benefits;h. to pay up to $650 per week in rent for 3 months for a property for [Mother] and the children;i. to pay the bond deposit for a rental property, provided it is returned to the father whenever the mother moves out of the property or to act as guarantor in the event that the mother provides evidence that she requires this if she undertakes not to cause any damages or alterations to the property that would be in breach of a tenancy agreement;j. in addition to paying the bond deposit, to pay for 3 months, the shortfall between the rental payments for a new property and the rental assistance payments she should receive from the Australian government, the amount I will pay not to exceed more than 650 Australian dollars per week.k. to take any necessary steps to ensure that the mother receives into her sole Australian bank account the family tax credit;l. to pay the costs of the mother to see a psychologist that may not be covered in full by medicare on condition that the mother meets with a GP so that she can obtain a mental health care plan, so that she can receive fully or partially subsided therapy;m. to pay for all the children’s total flight costs, including [Lois]’s and the mother’s flight and also to pay the flight cost for a third party/support person to travel with the mother and the children to Australia;n. to arrange for the lodging of the return order and undertakings with the Australian court; ando. to give the mother at least 72 hours’ notice of any first hearing in the Australian courts concerning the children.[40]In the course of his oral submissions, Mr Hames K.C. on behalf of Father indicated that he would be willing to extend the three months of rent referred to in items (h) and (j) above to six months.[41]Father submits, having taken legal advice, that the faster and more efficient route for the combination of undertakings above to be mirrored in an Australian court order is by way of a consent order in the Federal Circuit and Family Court of Australia (‘FCFCOA). Once made, such orders are binding and enforceable in Australia as Australian court orders. I understood Mother to accept this, and I am aware that Australia is a common law jurisdiction which treats undertakings much as in the UK. Accordingly, I am satisfied that these proposed measures are effective in the sense of being readily enforceable against Father if they are breached.[42]As for the scope of the undertakings offered:(1) I am satisfied that the risks presented to the elder children as a result of the (alleged) domestic abuse of their Mother by Father are materially and sufficiently reduced by the undertakings offered. The (alleged) incidents of physical, psychological and sexual abuse all took place within an ongoing domestic relationship. The undertakings offered will keep Father away from Mother. There is no history of Father breaching undertakings or court orders which would cause me to have concern that such undertakings would not prove effective. (There was some criticism that Father gave inadequate notice of his intention to fly into the UK for this hearing, in breach of the undertaking he had given. However, my understanding is that, before he arrived, the relevant undertaking had been released, such that he was not in breach.)(2) As for the allegations of financial abuse and coercive and controlling behaviour, the undertakings will provide for Mother sufficiently that she will not be dependent on Father for financing on a day-to-day basis, but be able to make her own independent financial decisions, and arrange for herself – for example – such childcare or other support as she needs. My one concern is that Mother should have funds in her bank account in Australia before she and the elder children arrive in Australia and not, as proposed in item (g), only after confirmation that she has arrived. One way through this might be that Mother gives seven days’ notice of when she and the elder children will be arriving in Australia; and Father must then ensure that the AUD $8,500 he offers is in Mother’s account three days before the date of arrival, meaning Mother will know she has the money before she leaves the UK. I will hear Counsel further in this regard.(3) I am satisfied that the risks presented to the elder children by any deterioration of Mother’s mental health as a result of moving to Australia will be appropriately managed by, in particular, item (l) above. I note in this regard that Dr Ratnam regarded this undertaking as sufficient.(4) Mother criticised the duration of the financial undertakings that were offered but, as I have indicated above, Father has now proposed to extend those undertakings to six months. In my judgment, that provides ample time for Mother to make any necessary application to the Australian administrative or judicial authorities.(5) Mother also criticised the quantum of the financial undertakings. Mother says that financial questions are central to her ability to care for the elder children safely, if she returns to Australia. Mother asserts that she would need AUD $850 per week for rental, plus (albeit, without explanation) AUD $5,000 per month for other expenses. However, Father provided evidence to show that $650 per week would be sufficient to rent an acceptable property in the area where the family had been living, and I accept that. I also consider that the AUD $8,500 lump sum which Father is offering, on top of the rent (and any bond deposit) will be sufficient to tide Mother over until the Australian court orders otherwise, and/or until Australian benefits become available.(6) Mother objects that item (o) does not adequately protect her against the risk that her mental health will be undermined by Australian litigation, even before she arrives in Australia. However, I consider that I can rely on the Australian courts to ensure a process which respects Mother’s vulnerability.[43]As I have indicated at paragraphs 42(5) and 42(6) above, Father’s undertakings will not be the only protective measures in place. I can and do also rely on the powers of the Australian state – the courts, the police, social services, and the like – to keep the elder children safe. As MacDonald J held in AT v SS [2015] EWHC 2703 (Fam), [2016] 2 FLR 1102 at [34], ‘it is well established that in judging whether there is a grave risk following return for the purposes of Art 13(b) of the Hague Convention, the court should accept that, unless the contrary is proved, the administrative, judicial and social services in the requesting State are as adept at protecting children as they are in the requested State’, and Mother did not seek to prove otherwise.

Conclusion on Article 13(b) exception

(b) exception

[44]Stepping back, I remind myself that I must consider the overall risk of harm to the elder children, bearing in mind all the matters I have discussed – all the allegations, and all the protective measures. It is the cumulative effect which matters: In re B (Children) [2022] EWCA Civ 1171, [2023] Fam 77 at [70].[45]In concrete terms, if Mother accompanies the elder children to Australia – which, in light of the protective measures that are offered, I consider is the more likely outcome – then I am satisfied that she will have the financial wherewithal, the protection of Father’s undertakings mirrored in an Australian court order, and the protection of Australian state bodies, which will together ensure that the elder children are not at grave risk of harm. If, however, the elder children travel without Mother, then I am satisfied that they will be able to live in their family home, with their Father with whom they have always lived, and again will not be at grave risk of harm.[46]Accordingly, I consider that the Article 13(b) exception is not made out. The Lois application Overview

The Lois application

[47]Lois is, and always has been, habitually resident in the UK. While she has, or is entitled to, both British and Australian nationality, she was born in England, she has never left England, and she has never been to Australia.

The law

[48]I was troubled as to whether the High Court’s inherent jurisdiction could ever extend to an order that a child who is habitually resident in the UK be summarily ‘returned’ to some other country, so that the courts of that other country could make a full welfare assessment concerning where she should live, and with whom. However, I am satisfied that the jurisdiction does exist in light of Re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre Intervening)[2013] UKSC 75, [2014] AC 1017.[49]In Re L, the child the subject of proceedings, K, was born in Texas in 2006. K was a US citizen, and lived with his parents in the United States until 2008, when he moved with his mother to the UK. In 2010, mother was ordered by the court in Texas to return to the United States to complete the divorce proceedings. There was a contested hearing in Texas in March 2010, after which the court granted the father exclusive rights to determine K’s primary residence. However, the mother brought an application before the US District Court seeking a return order, contending that since K had been habitually resident in the UK by March 2010, the father had wrongfully retained K in Texas, even pursuant to the Texas court’s order. The US District Court granted that application, and mother and child returned to the UK.[50]Two years later, in July 2012, the US Court of Appeals upheld an appeal against the US District Court’s decision, and the US Court then ordered K to be returned to the United States. In the High Court, the father sought a return order under the Hague Convention, alternatively under the inherent jurisdiction. The Supreme Court decided that no order could be made under the Hague Convention. However, the Supreme Court went on to hold that the High Court could exercise its inherent jurisdiction to order K’s return for the purpose of enabling the Texas court to consider any application which K’s mother might make or the modification of its previous order.[51]Baroness Hale held: 28. Article 18 of the Convention provides that its provisions on return of children “do not limit the power of a judicial or administrative authority to order the return of the child at any time”. The High Court has power to exercise its inherent jurisdiction in relation to children by virtue of the child’s habitual residence or presence here: Family Law Act 1986, sections 2(3) and 3(1). The welfare of the child is the court’s paramount consideration: Children Act 1989, section 1(1). But this does not mean that the court is obliged in every case to conduct a full-blown welfare-based inquiry into where the child should live. Long before the Hague Convention was adopted, the inherent jurisdiction was used to secure the prompt return of a child who had been wrongfully removed from his home country: see In re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80, paras 26-27, and the cases cited therein. Furthermore, it has long been established that, in the interests of international comity, the existence of an order made by a foreign court of competent jurisdiction is a relevant factor. As the Judicial Committee of the Privy Council put it in the Canadian case of McKee v McKee [1951] AC 352 364:
“Once it is conceded that the Court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow an order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, though in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case.” 29. In this case, Sir Peter Singer posed himself the following question [2013] 2 FLR 163, para 63: “So the question becomes whether I can on the information presently available to this court reasonably conclude that to leave his mother and London for his father and San Antonio would, at this point, be in his best interests.”

He answered that question thus in para 65:

“This is not a case where I would begin to feel justified in making what would be a peremptory return order. I have heard evidence from neither party nor from any witness. I have no CAFCASS report directed, as I would need as the barest minimum, to the degree to which KL is secure and settled in his current situation, to ascertain whether he thrives and what he may lack, and importantly to provide some assessment of the likely impact on him of a move from M to F and from London to Texas.”
He answered that question thus in para 65: 30. Mr Harrison complains that the judge asked himself the wrong question. The father obviously wants K to move to live with him, but that is not what he immediately proposes. He proposes that K should return to Texas, with his mother, so that the Texan court can consider any application which the mother may make for the modification of its order of 2 March 2010. The father's evidence was that such an application could be decided within less than three months. In the meantime, the father offers undertakings which would enable the parents to live separately in Texas but to share the care of their son between them. If the outcome were that K returned to live with his father, that would be because it was in his long term best interests to do so. 31. The Court of Appeal acknowledged that “ideally Sir Peter would have referred to the protective undertakings and the extent to which they would have resulted in mother and child returning together” (para 54), but then introduced considerations relating to the mother and her younger child contained in a statement the admissibility of which had not been formally determined; more importantly, they did not address the essential point that Sir Peter had asked himself the wrong question. 32. That being the case, it is open to this court to ask itself the correct question: is it in K's best interests to remain in this country so that the dispute between his parents is decided here or to return to Texas so that the dispute can be decided there? As the judge heard no oral evidence, we are also in as good a position as he was to answer it.[52]The Supreme Court went on to consider that it was in K’s best interests to return to Texas so that the dispute between his parents could be determined there. Re L is therefore a case where the Supreme Court ordered that a child, who was habitually resident in the UK, be ‘returned’ to another country, so that the courts of that country could make a full welfare assessment concerning where he should live, and with whom.[53]The question then arises as to when the High Court should exercise such jurisdiction. In this regard, Re L was something of a special case. As Moylan LJ described in Re S (A Child) (Hague Convention 1980: Return to Third State) [2019] EWCA Civ 352, [2019] 2 FLR 194 at [58], while holding that what had been ordered in the case before him was in effect a relocation[54]The present case is, as I have indicated, very far from Re L. There are, and have been, no Australian proceedings on foot in respect of Lois. While Lois is entitled to Australian nationality, she does not presently have an Australian passport. Lois has never lived in Australia. No welfare proceedings concerning Lois have ever taken place in Australia.[55]In light of Re L at [32], however, I consider that the test to be applied is simply to ask what is in the best interests of Lois. Although what is sought is not a summary return order in the usual sense, because Lois has never been to Australia, I am assisted in applying the ‘best interests’ test by the summary by Cobb J in J v J [2021] EWHC 2412 (Fam) of eight linked questions posed in the context of summary return orders by Lord Wilson in Re NY (A Child) [2019] UKSC 49: i) The court needs to consider whether the evidence before it is sufficiently up to date to enable it then to make the summary order; ii) The court ought to consider the evidence and decide what if any findings it should make in order for the court to justify the summary order (esp. in relation to the child’s habitual residence); iii) In order sufficiently to identify what the child’s welfare required for the purposes of a summary order, an inquiry should be conducted into any or all of the aspects of welfare specified in section 1(3) of the 1989 Act; a decision has to be taken on the individual facts as to how extensive that inquiry should be; iv) In a case where domestic abuse is alleged, the court should consider whether in the light of Practice Direction 12J, an inquiry should be conducted into the disputed allegations made by one party of domestic abuse and, if so, how extensive that inquiry should be; v) The court should consider whether it would be right to determine the summary return on the basis of welfare without at least rudimentary evidence about basic living arrangements for the child and carer; vi) The court should consider whether it would benefit from oral evidence and if so to what extent; vii) The court should consider whether to obtain a Cafcass report: “and, if so, upon what aspects and to what extent”; viii) The court should consider whether it needs to make a comparison of the respective judicial systems in the competing countries – having regard to the speed with which the courts will be able to resolve matters, and whether there is an effective relocation jurisdiction in the other court. Application of the law to the facts Counsel’s submissions

Application of the law to the facts

[56]On the premise that I am making a return order for the elder three children, as I am, Mr Hames K.C., on behalf of Father, submits that it is in the best interests of Lois to be sent to Australia with her siblings. Lois has never been separated from her siblings. I have up-to-date evidence, in the form of Father’s witness statement of 3 November 2025 in support of the Lois application, and Mother’s responsive witness statement of 13 November 2025, just four days before this hearing began.[57]Applying the welfare checklist, Mr Hames K.C. submits that I can assume that, if Lois were sent to Australia, her Mother would go too. I can also assume that, if Lois’s wishes and feelings were known, she would wish to have a relationship with her Father, and with her siblings. Her emotional needs would be met by not being separated from either parent or her siblings. Her physical needs will be met, given the protective measures which will be in place, and given the availability, which I can assume, of the range of resources made available by the Australian state. Lois’s circumstances would change, in that she would no longer be spending time with her maternal family, but she would spend time with her paternal family, and avoid the harm of separation from her more immediate family members. Sending Lois to Australia would expose her to the Australian part of her identity, to which she has not yet been exposed, and which is an important part of her background. There is no reason to doubt Mother’s capability in meeting Lois’s needs in Australia (bearing in mind, again, the protective measures that will be in place), and in any event Father will be there, with his support network, if Mother is not. As for the powers available to the Court, I have the power to send Lois to Australia, and it is in her best interests to keep her sibling group together, and to enable a single court to make a welfare determination for all the children together.[58]Mr Hames K.C. submits that, although domestic abuse has been alleged by Mother, I need not conduct any inquiry into such allegations. I can take Mother’s case at its highest, much as in the context of the Hague Convention application, and proceed on the basis that the protective measures are sufficient to protect Lois from harm.[59]Mr Hames K.C. further submits that I have sufficient evidence about the living arrangements for Mother and child if I were to send Lois to Australia: see paragraph 24(2) above.[60]In response, Ms Kirby K.C. submits, first, that it would be procedurally unfair to make the order sought at this hearing. In particular:(1) Father was considering making the Lois application by, at latest, 4 September 2025, as is recorded in a recital to the order made at the directions hearing on that date. Father then did not do so for two months, until 3 November. The application was issued by the court the following day, 4 November, just two weeks before the present hearing. Even if that was, as I was told, the result of a misunderstanding for which Father cannot be blamed personally, the effect has been to deny Mother the proper opportunity to consider how best to defend the Lois application.(2) Until early November 2025, the evidence filed in the case had been exclusively directed at the Hague Convention proceedings. At the directions hearing on 5 November, Hayden J gave permission to Mother to file a single statement, limited to 13 pages, to cover both the Lois application and Mother’s response to Father’s revised proposed protective measures. Mother has not had permission to file, nor even properly considered whether to file, evidence from, for example, the maternal grandmother or the maternal aunt, who could speak to Lois’s current situation living in the UK.[61]In addition, and linked to her first point, Ms Kirby K.C. submits that the evidence that I would need to make a ‘best interests’ decision is lacking. I have received no report from CAFCASS concerning the proposal to send Lois to Australia. As Ms Kirby K.C. put it, it is difficult to imagine CAFCASS saying that it would be in the best interests of Lois to leave the stable environment in which she is currently living, to go to the precarious position of living in Australia, with a Mother caught up in litigation, lacking a support network, and fearing abuse. Ms Kirby K.C. also makes the point that Mother’s evidence is that it would not be in Lois’s interest to be sent to Australia. Father may think it would be, but Father has only met Lois for about ten minutes in her whole life. Ms Kirby K.C. submits that Father has shown little interest or commitment to Lois since she was born. He did not take up the option of sending her cards or gifts.

Analysis

[62]In considering what is in Lois’s best interests, I am not making a binary choice. I have options which go beyond sending her to Australia, or dismissing the application. In particular, there is a third way, which is to adjourn the Lois application, and to postpone making a decision until after further evidence has been gathered.[63]In my judgment, the third way is the right one. I am satisfied that it would not be fair to Mother to decide the Lois application now. I accept the submission that Mother has not had sufficient time to consider what evidence she would wish to call in relation to the application, in particular as regards Lois’s situation in England. I also accept the submission that any decision concerning Lois’s best interests should be informed by a report from CAFCASS. I will hear further submissions from the parties as to the scope of the questions that CAFCASS should be asked to consider.[64]I recognise that this approach will cause delay, and that delay in resolving disputes such as these is likely, generally, to prejudice the welfare of the child. However, this must be set against the extremely truncated nature of the process so far, in which the Lois application was issued only a fortnight before the present hearing. Moreover, unlike with return orders under the Hague Convention, this is not a case where Lois is suffering harmful effects as a result of her wrongful removal or retention, such that prompt return would remedy what might otherwise be the consequences of that act (compare per Moylan LJ in Re B (A Child) (International Centre for Family Law, Policy and Practice Intervening) [2020] EWCA Civ 1187, [2020] 4 WLR 149 at [63]). I do not regard the additional time that will be required to decide this application following a further process as constituting unnecessary delay; rather, it is necessary to enable the court to assess where Lois’s best interests lie.[65]I accept that, given the purpose for which Lois would be sent to Australia, namely to enable the Australian court to decide the dispute between her parents as to where she and the elder children should live, it is not necessary for the court to decide the allegations of abuse made by Mother. The court can assume that those allegations are true, and then consider the protective measures in place. But for the purpose of the Lois application, the question of harm to Lois from the proposed change of circumstances is more nuanced than it is under the Hague Convention. The question is not the essentially binary question whether the court is satisfied that Lois will be at grave risk of harm or not. Rather what is required is to gauge the extent of harm that Lois may suffer from being sent to Australia, which can then be weighed in the overall balance of where her best interests lie.

Conclusion

[66]For these reasons, I shall:(1) Direct the return of the elder children to Australia within 14 days after Mother is notified that the mirror order is registered there; and(2) Adjourn the determination of the Lois application, pending the gathering of further evidence to assist the Court in such decision.[67]I shall hear Counsel further on the directions necessary to implement my decision.

Post-script

[68]In the course of argument concerning the form of order to be made to implement my decision, Father sought an order for interim contact pending the elder children’s return to Australia. Ms Kirby K.C objected that the court lacked jurisdiction to make such an order, on the grounds that the application under the Hague Convention had now been determined, noting that section 5 of the Child Abduction and Custody Act 1985 (the ‘1985 Act’) provides (with emphasis added): Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.[69]Ms Kirby K.C. also submitted that the interim contact sought in this case did not fall within the scope of Article 11 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children concluded on 19th October 1996 at The Hague (the ‘1996 Hague Convention’). Article 11 provides: In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection.[70]I gave a brief judgment concluding that I did have jurisdiction to make an order for interim contact, and made such an order. I informed the parties I would record my reasons more fully in writing. These are those reasons.[71]Mr Hames K.C. submitted that the court did have jurisdiction, applying a broad and purposive interpretation of section 5 of the 1985 Act. He drew to my attention Re A (Abduction: Interim Directions: Accommodation by Local Authority) [2010] EWCA Civ 586, [2011] 1 FLR 1. That was a case in which the Court of Appeal had to consider whether the provision by local authorities of accommodation fell within the scope of section 5. Thorpe LJ held at [38]: In my judgment, it undoubtedly does. There are many reasons why I reach that conclusion:(i) The essential mechanism for the operation of the Hague Convention internationally is the creation of a Central Authority in all participating jurisdictions. In Art 21 as well as in Art 7 obligations are imposed upon Central Authorities. But Central Authorities do not ordinarily hold or exercise power over others. Thus Art 21 defines a Central Authority duty but does not confer a power on the Central Authority, or indeed on the court, to make a contact order. Jurisdiction is only conferred by domestic statutory provisions and not by the Hague Convention itself.(ii) Thus enabling the Central Authority to discharge its responsibilities defined by Art 7(b) it was necessary to create a matching judicial power. That I see as the interrelationship between the section and the Article.(iii) Once that interrelationship is established it is, in my view, significant that the power that s 5 confers is plainly more extensive than the definition of the duty of the Central Authority defined by Art 7(b). I contrast: “To prevent further harm to the child … by taking … provisional measures” with ‘the court may … give … directions … for the purposes of securing the welfare of the child concerned …’(iv) The language of s 5 and the construction of that language needs to be extensive in order to achieve the objectives of the Hague Convention and to safeguard the welfare of children whose vulnerability is generally magnified by the effects of abduction.(v) Of course the commonest risk against which children must be protected is the risk of further flight. The stable door must be locked before the horse bolts again. The abductor may need to be confined to a particular address, may need to surrender passport, may need to report daily to the police, may even need to be electronically tagged. In some circumstances the abducting parent may be arrested and held in custody and in that case no-one could doubt the power of the court to order the accommodation of the child. The opportunity of a dangerous parent to re-abduct may need to be curtailed by removing the child into separate accommodation. So much is obvious and was accepted by Mostyn J, albeit as defining the limit of the court’s power.(vi) In my judgment, child protection is but part of safeguarding the welfare of the child. The latter is a wider concept than the former. The child may have welfare needs quite unrelated to the risk of another upheaval. The present case is a good enough example. K has special needs. His welfare can only be secured by meeting those needs. Pending the trial of the application he must have a roof over his head. He should not be separated from his mother who he needs as much as he needs a good lodging.[72]Mr Hames K.C. relied in particular on the observation at [38(iv)] in Thorpe LJ’s judgment that ‘The language of s 5 and the construction of that language needs to be extensive in order to achieve the objectives of the Hague Convention and to safeguard the welfare of children whose vulnerability is generally magnified by the effects of abduction’.[73]A similarly purposive and extensive reading of section 5 can be found in the judgment of Wilson J in Re N (Child Abduction: Jurisdiction) [1995] Fam 96. There, the applicant mother sought an order authorising the Tipstaff to collect the child from his father’s care, if, as was anticipated, father and child arrived at Heathrow Airport. The issue was whether the court had interim powers under section 5 before the child in question arrived in the jurisdiction. Having heard Counsel for the mother, without notice to the father, Wilson J held: There is no doubt that, had the boy arrived within the last hour at Heathrow Airport, I would have had the power to make the appropriate interim directions under section 5 of the Act of 1985 to hold him in this country, in the most advantageous circumstances from his point of view that may be devised, pending an inter partes inquiry as to whether he should be returned to California. Looking at the matter on the basis of common sense, it would seem to be extraordinary if that power were to exist in respect of a child who has just landed upon these shores but were not to exist in respect of a child who there was good reason to believe was likely to land upon these shores. and if, in truth, there is no jurisdiction to make orders in the latter case, there would seem to be a likely frustration in a number of such cases of the common intention of the states which signed the Convention on the Civil Aspects of International Child Abduction and imported it into their own laws. So I look to see whether I am driven by the terminology of the Act to conclude that the interim powers given to me under section 5 cannot be exercised other than in respect of a child already here. There is certainly nothing in section 5 itself which suggests that limitation. Nor is there any other section in Part I or Part III of the Act itself – Part II being irrelevant – which so provides; and it would have been easy for Parliament to have so provided if it had wished to do so. I look then to the terms of the Convention itself, which are set out in Schedule 1 to the Act of 1985. I note that under article 7 central authorities are bidden to:
"co-operate with each other and promote co-operation amongst the competent authorities in their respective states to secure the prompt return of children and to achieve the other objects of this Convention."
I appreciate that that article 7 is addressed to administrative authorities. Nevertheless its terms are such that, in application to this case, it amounts to a mandate to the administrative authorities of California and of England to co-operate to secure the prompt return of this boy. The obligation under article 7 is not, expressly or by implication, limited to the central authorities of the jurisdiction from which the child has been removed and of the jurisdiction where the child then is. I note article 8 namely that anybody "claiming that a child has been removed . . . in breach of custody rights may apply either to the central authority of the child's habitual residence or to the central authority of any other contracting state for assistance in securing the return of the child." The words "any other" are, in my view, of significance and clearly cover this jurisdiction, notwithstanding that the boy is not now here. Article 11 provides:
"The judicial or administrative authorities of contracting states shall act expeditiously in proceedings for the return of children."
The terminology is noticeably wide. I consider myself to be under a duty, as the judicial authority of a contracting state, to act expeditiously, as Mr. Setright bids me do this afternoon, in proceedings for the return of this child. I interpret the language both of the articles of the Convention and of the text of the Act as being deliberately wide in its instruction to this court to co-operate with all other contracting states in making orders which will secure the return of wrongfully taken children; and in this case its duty can be discharged only by making the orders for the boy's initial restoration into his mother's care in England if, as there are substantial grounds for expecting, he does land here with his father during the next few days.

I note article 8 namely that anybody

[74]Mr Hames K.C. submitted that, interpreting section 5 widely and purposively, an ‘application is determined’ in the context of an application for a return order under the (1980) Hague Convention only when such application is dismissed, or the children are returned. He submitted that, since I have decided that the children should be returned but that return has not yet taken place, the application has not been ‘determined’.[75]I see some merit in Mr Hames K.C.’s submission:(1) Article 7(b) of the Hague Convention, cited by Thorpe LJ in Re A and Wilson J in Re N, includes, within the scope of co-operation expected between authorities of contracting States, taking all appropriate measures ‘to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures’. It would be consistent with that expected co-operation that the court has power, at any time until children are returned, to order contact so as to prevent further harm to the children.(2) On the other hand, I can see that the proposed interpretation of section 5 might be inconsistent with Articles 7(3) and 11 of the 1996 Hague Convention. The 1996 Hague Convention post-dates the 1985 Act, but has been given force of law within the UK by the Private International Law (Implementation of Agreements) Act 2020, via section 3C of the Civil Jurisdiction and Judgments Act 1982. Articles 7(3) and 11 of the 1996 Hague Convention limit the court in a case such as this to taking only such urgent measures as are necessary for the protection of the children. While Article 11 can extend to ordering contact for a left-behind parent (see example 6(f) in paragraph 6.12 of the Practical Handbookon the operation of the [1996 Hague Convention], cited by Baroness Hale in Re J(A Child) (Reunite International Child Abduction Centre and ors intervening) [2015] UKSC 70 at [37]), I accept Ms Kirby K.C.’s submission that the facts of this case do not place it within the scope of Article 11.[76]Without deciding whether Mr Hames K.C.’s wider submission is correct or not, I prefer to base my decision on a somewhat narrower point. The application for interim contact was made, informally, in the course of submissions as to the form of order necessary to implement my decision to direct the return of the elder children to Australia. The application was made after I handed down my judgment, but before I made any order implementing my decision. I am satisfied that, at that time, since no order had been made, the application had not been determined within the meaning of section 5 of the 1985 Act. I am, accordingly, satisfied that in making directions for interim contact in the course of the hearing, and recording those directions alongside the return order as part of my formal order, I was acting within my jurisdiction by giving directions ‘before the application is determined’.[77]For these reasons, I concluded that I did have jurisdiction to make an order for interim contact, pending the return of the elder children, and, as I have indicated, I made such an order.

order

58. This situation is, therefore, very different to that which existed in the Supreme Court's decision of In re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2014] AC 1017. In that case applications had been made by the father under the 1980 Convention and under the inherent jurisdiction. The Supreme Court ordered the child's return to Texas under the inherent jurisdiction. Further, the context in which that order was made was very far removed from the circumstances of this case. Following a "welfare-based custody hearing" at which both parents had been represented, a court in Texas had decided that it was in the child's best interests for the father to have "primary residence", at [5]. Following this the child lived with the father for about 1½ years. A later order had also been made by a District Court in Texas requiring the mother to return the child to the father. A range of other factors were referred to in Lady Hale JSC's judgment, at [34] to [37], but it is clear from [36] that the court's decision was significantly influenced by the existence of the Texas court's order which conflicted with an order made by the English court. It was "necessary to restore the synthesis between the two jurisdictions" and for the court in Texas to decide where the child's best interests lay. Further there was "not the slightest reason to consider that (the child) would suffer any significant harm by returning to Texas", the mother not having defended the 1980 Convention proceedings on the basis of any risk of harm, at [37].