S and T (Children: Return to Italy), Re [2025] EWHC 835 (Fam)

[2025] EWHC 835 (Fam)Case No FD24P00857
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/04/2025
Before
MR JUSTICE MCKENDRICK
Between
A FatherApplicantA MotherRespondentRe S and T (Children: Return to Italy)
Miss Jacqueline Renton KC (instructed by Child & Child) for A pplicantMr Nicholas Anderson (instructed by The International Family Law Group) for R espondentHearing Hearing dates: 26, 27 March 2025
APPROVED JUDGMENTThis judgment was handed down remotely at 10.30am on 8 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
[1]The application before the court is for the summary return of S, a young boy, and T, a young girl, to Italy. Both children are under five. The applicant is their father and the respondent is their mother. The application is dated 30 December 2024 and is made pursuant to the Child Abduction and Custody Act 1985 (incorporating, by Schedule 1, the 1980 Hague Convention on the Civil Aspects of International Child Abduction, hereafter the "1980 Hague Convention").[2]The father is an Italian citizen. The mother was a citizen of a third country, but renounced her citizenship and is now a British citizen. The parties began a relationship in 2015 and married in London in 2018. In April 2018 they relocated to Italy. S was born in 2020 in Italy. T was born in 2022 in Italy. The children are dual British and Italian citizens. Their mother tongue is English but they also speak some Italian.[3]On 21 April 2024 the family travelled from Italy to London to ‘relocate’. The exact circumstances of the relocation require to be considered. The father said the move to London was a temporary one and was wrongful as the respondent practised deception on him. The mother says the father agreed to a permanent relocation and there was never any deception about the move. There is no dispute S and T were habitually resident in Italy just before 21 April 2024. Nor is there a dispute the applicant was exercising rights of custody at that time.[4]The family rented a home in London and the children attended nursery. The mother worked from London. The father commuted to northern Italy for his work until he was made redundant in July 2024 at which point he returned to be with his family in London. On 13 November 2024 the mother lodged a petition for divorce with the HMCTS on-line portal. This was issued on 18 November 2024. On the same day, the father purchased flights for the family to return to Italy on 14 December 2024. On 5 December 2024 the respondent issued an application for a non-molestation order, and a prohibited steps order, preventing the relocation of the children to Italy. She subsequently issued an application for a child arrangements order on 16 December 2024. On 30 December 2024 the application before me was issued. The father obtained new employment in Italy and began this role on 3 January 2025. He left the London home permanently on 3 February 2025.[5]The father’s primary case is that the removal from Italy to England and Wales on 21 April 2024 was the result of deceptive pre-meditated conduct by the mother and was wrongful and that as the children were habitually resident in Italy, Article 3 of the 1980 Hague Convention is thereby established. However, in the alternative it is submitted that the move on 21 April 2024 was only ever for a short period until November 2024 and there was therefore a repudiatory retention after 21 April 2024 which can be made out as early as 1 May 2024. I am asked to make the return order.[6]The mother’s case is that the parties agreed to relocate from Italy to England and Wales. Further, they are habitually resident in England and Wales. Alternatively, the return order would expose the children to the grave risk of harm within the meaning of Article 13 (b) of the 1980 Hague Convention. Mr Anderson recognised he was no longer pursuing an exception to the return based upon acquiescence. I am asked to refuse the return order.[7]At a hearing on 26 and 27 March 2025, I heard evidence from the father and the mother and a friend of the father’s. I reserved my decision. I have concluded the appropriate order is to make the return order.[8]Mr Anderson reminded of me of FPR Practice Direction 3AA at the outset of the hearing and whilst he invited me not to direct any participation directions he helpfully reminded me of the court’s independent duty to consider whether to do so. Having considered the matter I agreed and made no directions for participation directions.[9]The trial bundle runs (without permission) to over 800 pages (I am grateful for the appropriate apology received). The parties have poured over every detail of their lives from 2023 to 2024 to seek to make good their respective cases. Intricate submissions have been made on the minutiae of their every day lives. This is a summary jurisdiction. It is not possible to record every detail of the evidence. I simply summarise the overarching evidential position of the parties. They have both been well represented by experts in this area and it is not necessary or proportionate to resolve every detailed submission on lengthy and intricate evidence.[10]I have also weighed carefully whether the domestic abuse which has been admitted, and which is alleged, should lead to a different outcome, but I am satisfied a return order is the appropriate relief in the context of the evidence and law to which these proceedings give rise. The Evidence The Father

The Evidence

[11]The father says that the mother told him on 17 April 2024 that she had the opportunity of temporarily moving to London for a short term project, which would end in November 2024 at which stage the family would return to Italy. The father’s evidence is that the mother said that her employer would fund the rent, nursery fees, a nanny, cleaning and return tickets for the family. The children arrived in London on 21 April 2024 and were enrolled in a nursery. The father commuted backwards and forwards between London and Italy for work. The father thought the nursery was paid for until November but subsequently discovered a full year deposit was paid by the mother.[12]The father was made redundant in July 2024. He says he took on the sole care of the children.[13]The father states he only ever agreed to a temporary move to England with a return to Italy in November 2024. The father asserts the children were habitually resident in Italy at the point they moved to London temporarily on 21 April 2024. He describes a happy married life and the busy social lives the children enjoyed. He explains the mother registered herself as a ‘resident’ in a rural region of Italy where the family had a second home, for tax reasons.[14]He states the mother informed him on 17 April 2024 that she had been offered a temporary position in London on a fixed term project until November 2024, with an immediate start. He agreed to the temporary move. He supports this with the following evidential points: i. they took no steps to sell or rent their city home; ii. the mother’s conversation with the London local authority which carried out a safeguarding investigation; iii. he asked the Italian social services not to close their investigation; iv he emailed various people in July 2024 informing them the move would be until November 2024; v. his WhatsApp messages with Mr E.[15]The father asserts the mother’s move was premeditated to engineer a move to England and he points out there are a number of matters he only became aware of in December 2024, which demonstrate she was planning to retain the children. These include matters like: the mother’s visit to the British Consulate in July 2023; paying for storage in London from February 2024 and a report to a domestic abuse adviser in September 2023; and various February 2024 payments to nurseries and estate agents in London.[16]The father says that when he was made redundant he never sought a new job in London, looking only in Italy. He considered it was good for the children to attend nursery and disagrees this was to settle them here with a view to them becoming habitually resident or to attend school. He says the first time he was aware of the London local authority child and family assessment (which began 1 August 2024) was as part of the non-molestation injunction application, dated 5 December 2024. He explains that the mother did not cooperate with him for the children to be returned to Italy in December and that eventually he was required to issue proceedings. He explains that the wife’s brother tried to provoke him and instigate an argument when they visited in February 2025. He says he left the flat in February 2025 because his brother in law was threatening and was not contacted by the police.[17]He denies nearly all of the allegations of domestic abuse. He sets out the protective measures he agrees with.[18]The father gave evidence in person. His evidence was straightforwardly given. He accepted he agreed to children flying to UK on 21 April 2024. He says the reason they came was for a short term project. It was not a holiday. He said his job was not coming to an end. He stated he did not discuss voluntary redundancy before 21 April 2024. He only received formal notice of this on 2 July 2024 and there was no prior discussion before his redundancy agreement.[19]He said the mother asked him to support her graduate degree and to pay around £ 30, 000. His evidence was that he loved her and wanted to support her career. He agreed he asked her to work and that was because in his opinion she needed to work as she was struggling with the kids. It was not because of any job difficulties he experienced. He discovered much later the mother had paid for a real estate agent for the flat in London and children’s nursery at a much earlier point.[20]He said that on 17 April 2024, out of blue, she told him she had a job opportunity, a project, if it was successful and they would come back at the end of the project in November. He denied the mother had told him about a job in London in March. He said:
“It was one strong moment on 17 April. She did not give me enough notice. She told me we had to leave in four days. I was resisting this…... I said we had to discuss as mature people…. We agreed a temporary move to UK for the project.”
He said they agreed the move to London on the day after, as he had to discuss with his work. He said the mother told him her company had taken care of costs such as nursery.[21]When asked by Mr Anderson “Did you ask her how long she was planning this?” he responded that he had not and whilst he initially thought there was not enough time to move he agreed as it was important for her career. He was trying to be flexible but he was clear his job was in Italy and they would return in November. He says the mother never said she hoped the project would be extended or that the project would run until the end of the year with a decision in October as to whether it would be extended. She told him the end date was November on 17 April 2024. He accepts he did not correct the impression the role was more open ended when the mother informed Italian social services of this. He says this was because she was present and he did not want to upset her.[22]In respect of aletter from A nursery where the children attend, the father said he could not recall signing it but accepted it was his signature. He was confused about the documents as he was primarily only interested in the mother’s position as to consent for vaccinations. He was not aware these forms led to a place at a certain prep school. He denied a form for A Nursery contained the last sentence referencing a Prep school, when it was signed by him.[23]In respect of an incident of physical abuse in April 2024 he said:
“of course we had problems….I feel guilty of situation…not the first time [the mother] would not hand over the child…he had been crying for half an hour..[S] crying as he wanted to be with dad…that situation frustrated me….I grabbed her and moved her away. I didn’t push her to the wall..”

Mr E

[24]Mr E is a family friend. He said he understood the family were stable in London not that it was permanent. He said he suggested they see each other before they return to Italy and that November was the date or period he had in his head from previous discussions. He accepts in the conversation he introduced the date of November not the mother.[25]The father relies on another witness statement which I have read but which does not assist very much.

The Mother

[26]The mother’s evidence is that the father’s behaviour towards her changed after the birth of S. She says he belittled her parenting abilities and began to be verbally abusive. She gives an example of a threat to punch her. She says so began a cycle of abuse. She cites an example from December 2021 when the father was driving and swore at her and when they stopped she locked herself in the car because she was ‘terrified’ whilst he kicked the car. She says he often became enraged by the smallest things. After COVID they spent more time in the countryside and the father bought a home which was put in the mother’s sole name. She says she spent a lot of time there but began to feel isolated and vulnerable. In August 2022 she says he dragged her into another room in their home to argue with her and on another occasion punched a pillar close to her and grabbed her arms leaving marks. During this time her mother often stayed with her and she witnessed the father’s domestic abuse. Concerned, she visited the British Consulate seeking advice in July 2023. A referral was made to Italian social services who asked for a meeting with the parents in February 2024. The mother says the father was present at this meeting and she was terrified. She had no reassurance her children would be safe with the Italian authorities. She told them she did not want any further social services involvement.[27]She sets out the father encouraged her to return to work and that they were having financial problems. She explains she studied part time. During a holiday in the UK in August 2023 she says she discussed with the father how lovely it would be to return to live in the UK permanently. She says as part of their plan to permanently relocate to London they discussed the better dental care available in London for S, who had some particular dental difficulties.[28]The mother’s evidence is that she began looking for a permanent job in London in December 2023. In the spring of 2024 an opportunity arose in her work’s UK team. She shared the news in March 2024 that she had secured a role in London and the first part of the new job would run until most likely November 2024 “with the option to extend and lead into further projects if the initial project was a success.” She says the father’s job was vulnerable around this time. The mother’s evidence is that the father “finally agreed that we should all move to London together, recognising and stating that the role that I had been offered was a great opportunity for me and the family as a whole, which aligned with our mutual love for the city.” She says the father knew that if the first part of the project was a success it would be extended and this would be announced in October or November 2024. She says it was very obvious the London job “was going to be a permanent one (even in the unlikely event that we didn’t secure an extension of the project.)” She says he provided his consent to “the move” in a WhatsApp on 19 April 2024.[29]She says the father attacked her on 19 April 2024, throwing the mother against the wall hurting her shoulder and wrist badly. The mother says they flew to London on one way tickets with lots of luggage. She says the father was keen for the children to settle and this is demonstrated by decorating their rooms and nursery and dental care. The mother relied on a WhatsApp message to Mr E which states that the father said:
“I am here [London] permanently until November now.”
The mother further relies on the forms completed for nursery which reference prep schools places being guaranteed if two years of nursery education is completed. The mother’s evidence is that the children are integrated into London life with a comfortable London flat and with their time at their nursery. She relies on their progress notes. A prep school has offered S a place. Their medical needs are met through registration in a local GP practice and at a specialise dental clinic. They have busy extra-curricular activities and museum and zoo memberships. She contrasts this with isolation in Italy. She states she has family in the UK and the children’s first language is English.[30]She says the father’s behaviour worsened after he was made redundant in July 2024, at which stage he ceased commuting backwards and forward to Italy and moved into the London flat. She says when the father secured a new job which began in January 2025 he made the return to Italy an issue. She issued divorce proceedings in November 2024 and made an application for a non-molestation injunction and a prohibited steps order to prevent the children being removed from England and Wales. District Judge Jenkins acceded to these applications. The non-molestation order runs to 9 December 2025.[31]In February 2025 the mother states the father was rude to her sister-in-law and the next day directed a ‘tirade of abuse’ at her. She called the police and states the father voluntarily agreed to leave the flat.[32]Her witness statement sets out the father consented to the children moving to the UK on 21 April 2024. She states:
“ I accept that phase 1 came to an end in December 2024 but [the father] knew that I hoped that I would be asked to work on the subsequent phases for the client and that would lead to me remaining in the UK and in the meantime London has become our home.”
[33]Alternatively she states the father has acquiesced in the children residing in the UK. She points to him supporting the children and making them settled.[34]She further states returning to Italy fills her with dread and she would return unemployed, dependent upon the father and without a home. She does not have confidence in Italian social services. She states the children’s lives would be disrupted if they returned to Italy. In the event that the court is minded to order the children’s return she seeks protective measures[35]The mother was politely but rigorously cross-examined by Miss Renton. It became clear there were aspects of her evidence where she obfuscated and it took quite some time for clear answers to emerge. There was something of a lack of candour about how she answered some questions. This has impacted on her credibility although I note her devotion to her children.[36]Miss Renton took the mother to a London local authority ‘Child and Family Assessment’ report which was began on 1 August 2024 and signed off by a manager on 26 September 2024. The mother contacted social services and alleged domestic abuse at the hands of the father. Social services did not contact the father. The report details what the social worker understood the mother told her. However in cross-examination the mother disowned aspects of the social worker’s report, stating it was inaccurate and it was rushed by the social worker having been completed on the last day of her job. I understood the mother to state she had complained about its contents and asked for it to be changed, although there are no records of this. The report states the following:
“[The mother] is determined to take steps to safeguard her children, and the decision to come to the UK is part of that plan. [The mother] is of the view that UK legislation offers women and children in situations like hers, greater levels of security and protection and she has spoken at length about experiences of oppressive and discriminatory practices against women and non-Italians. [The mother] does not want her children to experience their father’s emotional abuse any longer. [The mother] intends ending the relationship in the middle of October 2024 and she has sought advice from solicitors and has been advised she needs to be in the UK for a minimum of 6 months before she can file for divorce. She has been in the UK for 5 months. ..”
[37]She denied that the £ 2 500 she paid to previous solicitors earlier on 8 May 2024 was for divorce advice. Her evidence is that she paid this money for domestic abuse advice.[38]The mother disputed that she was ever settled in northern Italy and queried the London local authority’s social worker’s description.[39]When challenged about the family’s second home in Italy which was in her name for tax reasons, she finally accepted it was part of the family assets. She disputed she had marketed it for sale behind the father’s back but accepted that she had asked the director of a local hotel who was not an estate agent to inform her if anyone was interested in buying the flat. She said she was the subject of financial abuse. She denied the suggestion the flat was sold to fund her plan to move the children to London. It was put to her she had lied and told the father her employer’s company was paying for the relocation when in fact she was. She denied this and denied telling the father her employer was funding the relocation.[40]Miss Renton took her to a report from Italian social services dated 21 August 2023 which references a communication between the mother and the British Consulate which states:
“The British Consulate employee reported that [the mother] had contacted her and asked to leave Italy with her children. The woman also reported that her husband and been violent with her verbally and physical in the presence of the children; in this context, the woman had not clarified how and when the violence had occurred.”
[41]The mother stated this did not evidence an intention to relocate and the conversation with the Consulate related only to her intention to have a holiday in August 2023 in London.[42]The mother was taken to a letter dated 30 January 2024 from A Nursery where the children would eventually begin in April 2024. She accepted she had received this letter on 30 January 2025 and when questioned as to why the father did not sign it until 22 April 2024, she responded that he was busy on a trip to London but she could not explain why the father did not sign it when he returned from the trip on 1 February 2024. She was taken to her bank statement and explained she had paid for the £ 1000 deposit for the nursery places on 28 February 2024 in her sole name. She said she had discussed this with the father. She claimed she had paid from her sole bank account rather than the family joint account to save on the exchange rate conversion but then it was pointed out she had in fact transferred the money on the same day from her Italian bank account. There was no proper explanation for this.[43]She was questioned about an A Nursery form called “Future School Plan”. There are two versions of this. One states there are no plans for the future and the parents will evaluate. The other form has additional text which states:
“and we are happy to explore A Nursery suggested options including X Prep School.”
She denied she had filled that in after the father had signed this form on 22 April 2024. There was no clear explanation provided as to why there are two versions of the form with different text.[44]The mother was taken to her bank statements in April 2024 which showed she had received a large payment from the father and she had then used this money to pay estate agents for the London flat that was rented from later that month. She denied the money had been given to her for her graduate degree and gave evidence that the father knew this transfer would be used for the flat rental.[45]Her evidence was that they had started looking for London flat rentals online in January 2024 and she looked at one flat in person in London in March 2024. She went by herself and this was in fact the property they had rented. She said she liked the flat and when she returned to Italy in March 2024 she had told the father about this. It was accepted none of this is set out in her witness statement.[46]She denied she had hidden the children’s passports from the father. Her evidence was that her son could not travel because of dental issues and the father knew that. She gave evidence that the children did not leave London to visit Italy from when they came to London in April 2024. She denied this was because of her plan to keep them in England for six months to retain them here. When it was put to her the London social worker had recorded that she: “had stored her children’s travel documents in a storage locker that [the father] does not know about” her response was that the social worker was inaccurate and the reason the children did not travel was because of her son’s dental recovery. The Law Hague Convention Purpose

The Law

[47]The objective of the Hague Convention is set out in the preamble:
"Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,"
[48]Article 3 of the 1980 Hague Convention states: The removal or the retention of a child is to be considered wrongful where -a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; andb) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.[49]Article 12 of the Hague Convention provides:
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."

Consent

[50]Article 13 of the Hague Convention states inter alia: 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 thata) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention …[51]Hershman and McFarlane: Children Law and Practice by McFarlane, Reardon and Laing, published by Bloomsbury provides a useful summary of the principles at paragraph 166AB. Consent must be proven on the balance of probabilities by the party alleging consent was obtained. Consent is an exception to the principle of return. Consent refers to consent given before the act of removal or retention. Consent need not be proved by evidence in writing or other documentary material as parents may not have reduced their agreed position in respect of their children to a written document. It is appropriate to consider the parents' conduct in the context of all the evidence before the court. Consent is not however a purely private 'state of mind' which need not be communicated. Consent must be seen in the context of family life, not the rules of contract law. Consent can be withdrawn at any time before the actual removal. Consent must be real. The task of the court is to find as a fact whether the parent subjectively intended to and did give unconditional consent to the removal. Had the parent clearly and unequivocally consented to the removal?[52]Peter Jackson LJ summarises the principles of consent in in G (Abduction: Consent/Discretion) [2021] EWCA Civ 139 at paragraph 25 to 26 as follows (emphasis added): '…The position can be summarised in this way:(1) The removing parent must prove consent to the civil standard. The inquiry is fact-specific and the ultimate question is: had the remaining parent clearly and unequivocally consented to the removal?(2) The presence or absence of consent must be viewed in the context of the common sense realities of family life and family breakdown, and not in the context of the law of contract. The court will focus on the reality of the family's situation and consider all the circumstances in making its assessment. A primary focus is likely to be on the words and actions of the remaining parent. The words and actions of the removing parent may also be a significant indicator of whether that parent genuinely believed that consent had been given, and consequently an indicator of whether consent had in fact been given.(3) Consent must be clear and unequivocal but it does not have to be given in writing or in any particular terms. It may be manifested by words and/or inferred from conduct.(4) A person may consent with the gravest reservations, but that does not render the consent invalid if the evidence is otherwise sufficient to establish it.(5) Consent must be real in the sense that it relates to a removal in circumstances that are broadly within the contemplation of both parties.(6) Consent that would not have been given but for some material deception or misrepresentation on the part of the removing parent will not be valid.(7) Consent must be given before removal. Advance consent may be given to removal at some future but unspecified time or upon the happening of an event that can be objectively verified by both parties. To be valid, such consent must still be operative at the time of the removal.(8) Consent can be withdrawn at any time before the actual removal. The question will be whether, in the light of the words and/or conduct of the remaining parent, the previous consent remained operative or not.(9) The giving or withdrawing of consent by a remaining parent must have been made known by words and/or conduct to the removing parent. A consent or withdrawal of consent of which a removing parent is unaware cannot be effective.

Repudiatory Retention

[53]Miss Renton relies on Re C (Children) [2018] UKSC 8; [2018] 1 FLR 867 where Lord Hughes (who set out the majority decision) sets out the principles of repudiatory retention 43 to 51. Paragraph 43 describes wrongful retention: When the left-behind parent agrees to the child travelling abroad, he is exercising, not abandoning, his rights of custody. Those rights of custody include the right to be party to any arrangement as to which country the child is to live in. It is not accurate to say that he gives up a right to veto the child’s movements abroad; he exercises that right by permitting such movement on terms. He has agreed to the travel only on terms that the stay is to be temporary and the child will be returned as agreed. So long as the travelling parent honours the temporary nature of the stay abroad, he is not infringing the left-behind parent’s rights of custody. But once he repudiates the agreement, and keeps the child without the intention to return, and denying the temporary nature of the stay, his retention is no longer on the terms agreed. It amounts to a claim to unilateral decision where the child shall live. It repudiates the rights of custody of the left-behind parent, and becomes wrongful.[54]Reliance is also placed on Lord Kerr (who dissented) at paragraph 60 who held: When dealing with the effect of wrongful retention of a child by what has been described as a travelling parent, one can recognise that various factors are in play. One starts with the proposition that, in general, it should not be possible for a child to acquire or for a parent to bestow habitual residence after the time that wrongful retention begins. A strong imperative exists for discouraging travelling parents from the view that they can avoid the consequences of the Abduction Convention by concealing an intention to retain the child in the country to which they have travelled, on the pretext, for instance, of a holiday of fixed or limited duration. To insist that wrongful retention can only occur at the end of an agreed period of absence could lead to absurd results; would encourage dissimulation on the part of the travelling parent; and would permit habitual residence to be acquired by the perpetration of deception on the left-behind parent.

Article 13 (b) - Intolerability

(b) - Intolerability

[55]The law in respect of the defence of grave risk of harm or intolerability pursuant to Article 13(b) was considered by the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144. In E v D (Return Order) [2022] EWHC 1216 (Fam) MacDonald J helpfully summarised the relevant principles at paragraphs 29 and 30:
"i) 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. ii) 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. iii) 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. iv) 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'. v) 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. ….. In Re E, the Supreme Court made clear that in examining whether the exception in Art 13(b) has been made out, the court is required to evaluate the evidence against the civil standard of proof, namely the ordinary balance of probabilities whilst being mindful of the limitations involved in the summary nature of the Convention process. Within the context of this tension between the need to evaluate the evidence against the civil standard of proof and the summary nature of the proceedings, the Supreme Court further made clear that the approach to be adopted in respect of the harm defence is not one that demands the court engage in a fact-finding exercise to determine the veracity of the matters alleged as grounding the defence under Art 13(b). Rather, the court should assume the risk of harm at its highest and then, if that risk meets the test in Art 13(b), go on to consider whether protective measures sufficient to mitigate harm can be identified."
[56]See also Baker LJ (with the agreement of King and Lewis LJJ) in Re IG (A Child) (Child Abduction: habitual residence: Article 13 (b)) and his summary of the legal principles at paragraph 46 to 48 which held:
"The leading authorities remain the decisions of the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144 and Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 AC 257. The principles set out in those decisions have been considered by this Court in a number of authorities, notably Re P (A Child) (Abduction: Consideration of Evidence) [2017] EWCA 1677, [2018] 4 WLR 16 and Re C (Children) (Abduction: Article 13(b)) [2018] EWCA Civ 2834, [2019] 1 FLR 1045. Since the hearing of the present appeal, this Court has handed down judgments in another appeal involving Article 13(b), Re A (A Child) (Article 13(b)) [2021] EWCA Civ 939 in which Moylan LJ carried out a further analysis of the case law. I do not intend to add to the extensive jurisprudence on this topic in this judgment, but merely seek to identify the principles derived from the case law which are relevant to the present appeal. The relevant principles are, in summary, as follows. (1) The terms of Article 13(b) are by their very nature restricted in their scope. The defence has a high threshold, demonstrated by the use of the words "grave" and "intolerable". (2) The focus is on the child. The issue is the risk to the child in the event of his or her return. (3) The separation of the child from the abducting parent can establish the required grave risk. (4) When the allegations on which the abducting parent relies to establish grave risk are disputed, the court should first establish whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then establish how the child can be protected from the risk. (5) In assessing these matters, the court must be mindful of the limitations involved in the summary nature of the Hague process. It will rarely be appropriate to hear oral evidence of the allegations made under Article 13(b) and so neither the allegations nor their rebuttal are usually tested in cross-examination. (6) That does not mean, however, that no evaluative assessment of the allegations should be undertaken by the court. The court must examine in concrete terms the situation in which the child would be on return. In analysing whether the allegations are of sufficient detail and substance to give rise to the grave risk, the judge will have to consider whether the evidence enables him or her confidently to discount the possibility that they do. (7) If the judge concludes that the allegations would potentially establish the existence of an Article 13(b) risk, he or she must then carefully consider whether and how the risk can be addressed or sufficiently ameliorated so that the child will not be exposed to the risk. (8) In many cases, sufficient protection will be afforded by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there. (9) In deciding what weight can be placed on undertakings, the court has to take into account the extent to which they are likely to be effective, both in terms of compliance and in terms of the consequences, including remedies for enforcement in the requesting State, in the absence of compliance. (10) As has been made clear by the Practice Guidance on "
Case Management and Mediation of International Child Abduction Proceedings" issued by the President of the Family Division on 13 March 2018, the question of specific protective measures must be addressed at the earliest opportunity, including by obtaining information as to the protective measures that are available, or could be put in place, to meet the alleged identified risks. In his judgment in the recent case of Re A, Moylan LJ (at paragraph 97) gave this warning about the failure to follow the approach set out above in paragraph (4):
"if the court does not follow the approach referred to above, it would create the inevitable prospect of the court's evaluation falling between two stools. The court's "process of reasoning", to adopt the expression used by Lord Wilson in Re S, at [22], would not include either (a) considering the risks to the child or children if the allegations were true; nor (b) confidently discounting the possibility that the allegations gave rise to an Article 13(b) risk. The court would, rather, by adopting something of a middle course, be likely to be distracted from considering the second element of the Re E approach, namely "how the child can be protected against the risk" which the allegations, if true, would potentially establish."

Habitual Residence

[57]I set out my understanding of habitual residence in A Mother v A Father [2023] EWHC 2728 (Fam) at paragraphs 51-55. I apply that analysis without repeating it in this already lengthy judgment.

Discussion

[58]The burden of proof is on the applicant father to demonstrate the removal in April 2024 was wrongful. He must demonstrate this on the balance of probabilities. The burden is on the mother to demonstrate the father consented to a permanent relocation, again to the civil standard. There is clearly an overlap on these issues but the evidence is clear on both and the burden of proof is of marginal relevance having considered all the evidence.

Wrongful Removal?

[59]I have read the written evidence and observed the mother and father give their oral evidence. The latter is particularly important to determine the issue of:(i) whether the move in April in 2024 was based on the mother’s deception and was wrongful;(ii) whether the move was a temporary or permanent one; and(iii) whether the mother can succeed on her Article 13 (a) consent defence. Having considered all the evidence carefully and holistically, I make the following findings of fact:a. The mother told the father for the first time on 17 April 2024 that she had obtained employment on a temporary basis until November 2024 in London;b. The mother had not told the father about this before;c. The mother planned to relocate to London permanently and end the relationship;d. The mother had planned accommodation and the nursery in advance of 17 April 2024 and had not informed the father;e. The mother used deception;f. The mother planned to retain the children in London and did not tell the father this was her plan.g. The mother accepted a place for S at a preparatory school in London on 1 May 2024 without informing the father.[60]My reasons for making these findings are as follows. The mother’s evidence in the witness box was not satisfactory; it was rather evasive at times. I accept the father’s submission that the mother did tell the British Consulate official in August 2023 that she wished to “leave Italy with her children”. The plain text of the Italian social services report makes clear this was not for a holiday. It is not credible as the mother suggested this was poorly recorded. A later Italian social services report dated 7 June 2024 references a holiday dispute, but the 21 August 2023 one does not. The mother accepted the conversation took place in English. This demonstrates as far back as the summer of 2023, the mother began a plan to relocate the children to London. The mother then paid for a deposit at A Nursery and I accept the father’s evidence he knew nothing about this. I accept his evidence that he found about this when the financial disclosure took place in their financial remedy proceedings. The payment was made from the mother’s bank account which the father did not know about. There is no contemporaneous evidence to support the father’s knowledge of A nursery at this time.[61]I also consider that the London local authority Child and Family Assessment accurately sets out what the mother told the social worker. I do not accept the mother’s oral evidence that the social worker rushed on her last day in that employment and therefore set out an inaccurate summary of what she was told.[62]Furthermore, the mother’s evidence that the parties began looking for London rentals in January and that she visited a property in March 2024 on a work visit and returned to Italy and told the father about this is rather odd. Such a permanent move would have been a significant step and yet there are no contemporaneous messages supporting the mother’s chronology. There are no messages between this couple sharing rental properties and thoughts. Tellingly, the mother’s own written evidence fails to detail her visit to the property that she went on to rent. Nor does it recount her telling the father about this and a record of his reaction. Given the family were, on the mother’s case permanently moving homes, this is a surprising omission of a significant life event.[63]I also accept the father’s evidence that he knew nothing about the sale of the second home in the mountains.[64]The mother began paying for the Z Storage Company in London from 7 February 2024. I did not find her explanation that this storage was for her brother (who lived in Scotland) credible. It was part of a deception to move her life and that of her children to London behind the father’s back. Tellingly she also contracted, on 8 February 2024, with an English mobile telephone company.[65]I also accept the father’s evidence that he was told by the mother her employer would pay for the relocation and living costs. This is partly supported by what the Italian social service report states: the mother’s company ‘arranged’ their living and nursery. I find he made payments believing they were for her graduate degree and that she instead made payments to estate agents and to A Nursery in 2024 and that the father knew nothing until disclosure in the financial remedies proceedings.[66]I also accept Miss Renton’s submission that the post April 2024 conduct of the mother supports the father’s case on the deceptive and premeditated move. I find the mother did hide the passports from the father and what she told the London social worker as reported in the Child and Family Assessment was what took place. The father was fobbed off with a story about HMRC and the dental work was not a credible reason to explain why the children could not have a summer holiday in Italy as was planned.[67]I also accept that whilst the father was involved in signing up the children for A Nursery he knew nothing of the mother’s actions in signing up their son for a Prep School on 1 May 2024. The mother’s attempts to set out that there was a seamless transition from A Nursery to the Prep School in oral evidence were not credible or persuasive. There is no evidence that the mother forwarded on the 1 May 2024 email offering the Prep School place to the father. I accept his evidence that the first he knew about this was when he read the mother’s witness statement.[68]I was initially unsure if the father’s evidence that he was only told of the temporary move on 17 April 2024 was in fact correct. It seemed unusual that he would be told this on 17 April and then he would have travelled with them on 21 April 2024. Having reflected on the parties’ oral evidence and considered the contemporaneous messages between this couple, I am persuaded the father was initially unsure but then did all he could to make it happen. He saw this as an opportunity to make his wife happy and to rekindle their relationship. Perhaps he should have been more curious how his wife had arranged a nursery and a rented home so quickly but on balance I consider he adopted a ‘can do’ attitude to support his wife and improve their relationship. I do not accept the father’s redundancy had been ‘on the cards’ for months before he was made redundant in July 2024. There is no contemporaneous evidence to support this.[69]I therefore find that the move in April 2024 was wrongful and in breach of Article 3 of the 1980 Hague Convention.[70]As I also find there was material deception on the part of the removing parent, the mother, and as such there was no valid consent provided for the removal of the children – see sub-paragraph 6 of Peter Jackson LJ’s summary in G. This applies to vitiate any consent to come to London.

Consent and Repudiatory Retention

[71]However, in the alternative, should I be wrong in my conclusions above, I next consider whether if the move was not based on deception whether the move was temporary until November, as the father suggests, or permanent, as the mother suggests.[72]On this issue, I accept once more Miss Renton’s case. I find – leaving aside the deception - the move was based on a temporary relocation until November 2024 and not a permanent one. I prefer the father’s written and oral evidence over the mother’s as it was more credible and was supported by contemporaneous communications. In particular:a. Both parties accept no efforts were made to rent or sell the former matrimonial home in Italy - this remained largely unoccupied, as the agreement was for the parties to return in Italy;b. The father kept his employment in Italy and when he was made redundant in July 2024 looked for employment in Italy not London. Why would he do so from July if he planned to move to London permanently with his family?c. The father’s communications with the following all support a November 2024 return to Italy: i. Father texted mother in May 2024 referencing London being until November; ii. Father messaged a pension fund consultant in July 2024 informing him the family were in London until November; iii. Father messages a counsellor in July 2024 again referencing the family’s relocation until November; iv. The father emailed Italian social services on 12 May 2024 asking them not to close their investigation because they would come back to Italy;d. Mr E’s evidence demonstrates his understanding the family would return to Italy in November;e. The mother hid the children’s passports from the father which makes little sense if the move to London was agreed to be permanent.f. The father’s November 2024 messages to the mother to plan the return make clear his understanding was that they were returning home to Italy.g. As set out above, the mother’s approach to the April 2024 relocation was predicated on her deception.[73]On the basis this was a temporary move, the mother breached the father’s rights of custody by planning a permanent relocation after the temporary one in London which was agreed had begun. This is the repudiatory breach. On the evidence this is established on 1 May 2024 when the mother agreed a Prep School place for S without the father’s knowledge or consent. I also find on the totality of the evidence it is more likely than not that the mother did consult solicitors to seek divorce advice on 8 May 2024, as she confirmed to the London social worker. I do not accept this was advice about domestic abuse and that has never been explained (leaving aside any issue of privilege). Nor do I accept the social worker made the errors the mother suggests because she was rushing on her last day of employment. Alternatively, the mother had certainly planned to repudiate the consent to a temporary relocation when she explained her plan to London social services in August 2024 or by the very least in November 2024 when she filed for divorce.[74]I therefore find applying Re C that if the removal to London in April 2024 was not wrongful because I am wrong about the mother’s deception, then there was a repudiatory breach as early as 1 May 2024 or alternatively on 8 May 2024, August 2024 or November 2024.

Habitual Residence

[75]The next issue is the children’s habitual residence. It is not necessary for me to consider this issue given the findings I have made of deception and the lack of any consent on the part of the father to the relocation temporary or otherwise. However, in case I am wrong about that, I have considered habitual residence on the basis I am wrong and there was a lawful consensual temporary move. On 1 May 2024 the children were not habitually resident in London having been there for only ten days. They had not integrated in any meaningful sense and further their move remained temporary. Furthermore, I do not find that even in November 2024 they were habitually resident in London. There is little or no evidence of what the mother told the children during this time about their reasons to be in London and whether or not it was temporary or permanent. The father’s clear position was that it was temporary. There is very little if any contemporaneous evidence from the mother’s outward expression to the family of whether the London stay was temporary or permanent. Looking at all the evidence from the children’s perspective their time in London was temporary. In the context of my finding that the move to London was always temporary because the family had planned to return to their home, where they were born and had grown up all their lives in Italy. They had retained their Italian home and health services. Their temporary presence in a rented home and nursery attendance, even with social roots did not displace their habitual residence in Italy, given their temporary status. I have surveyed all the evidence and Mr Anderson’s detailed submissions but cannot conclude their residence was stable given it was temporary with the father planning their return to their Italian home. Any degree of integration they had, and they had some, is outweighed by their deeper integration into Italy, given the temporary nature of their London stay. As the trial judge this is factual inquiry and I am clear not to overlay any legal gloss on my factual determinations.

Article 13 (b)

[76]I next turn to the mother’s Article 13 (b) defence. The mother’s case is that because of the domestic abuse and controlling behaviours of the father, she and the children would face an intolerable situation on return to Italy. There is one agreed incident of domestic abuse. I have seen the video. I am concerned at the distress shown by S. He is crying, screaming in the face of the confrontation between his parents. It seems he tries to protect his mother. I have not received enough context to this video or what began before the video recording to understand what caused him so much distress. The father is right to apologise.[77]The other allegations of domestic abuse are disputed. Plainly there has been domestic abuse and I am not able to discount the allegations made but nor is it possible on this summary application to determine the truth of the remaining disputed allegations. Following the established case law set out above, I proceed on assessing the risk of harm taking the allegations at their highest and proceed to consider whether protective measures can protect the children on a return to Italy.[78]The father offers the following protective measures:a. An undertaking not to prosecute the mother;b. He will not attend at the airport on the day of return;c. He will pay all necessary bills at the mother’s accommodation;d. He will pay the costs of the mother and children’s return flights to Italy;e. He will not enter any property where the mother resides;f. He will provide a non-molestation undertaking;g. Not to communicate directly with the mother save for making arrangements for the children and to use Our Family Wizard;h. The children’s passports will be held to the order of the court by the mother Italian lawyers to prevent any onward travel until such time as the Italian courts can make any appropriate orders. In those circumstances the father will provide 7 days notice of any application to the Italian courts. (I will require information that the mother has properly instructed Italian lawyers before the order is sealed).[79]The father asks me to accept I have jurisdiction pursuant to the 1996 Hague Convention to order the children to return to their home city in circumstances where the mother states she wishes to reside in the mountains if returned to Italy with her children. I am asked to use Article 11 jurisdiction. I decline to do so. The issue of where the children reside in Italy is a pressing one but it is not urgent and furthermore it cannot be said to amount to a necessary urgent protective measure needed to prevent “irreparable harm” (see paragraph 68 of the 1996 Hague Convention report of Prof Lagarde). The children have been separated from their father since early February 2025 with some contact as previously ordered by Peel J. Should the mother and father live in different locations in northern Italy the current status quo will be preserved and I expect the parties to agree contact until such time as the Italian court can determine this issue (as they did for last weekend’s contact). This does not cause irreparable harm to them.[80]There are also issues regarding how much financial support the father should provide the mother. This is a summary jurisdiction. I conclude the father can afford to pay £ 3000 each month until such time as the Italian courts can resolve matters or the parties agree matters. I accept the mother has access to some funds and may be able to work but that is not entirely clear. Given the father declined legal aid and given the quantum of his schedule of costs for this application I am satisfied he has access to funds to support the mother and the children for some time in Italy. The mother has identified in paragraph 5 of her second witness statement the costs of a rental in a tourist town. She need not necessarily rent there. The father says it is expensive. Nor is it necessary for her to return to the city where she previously lived. Looking at these factors £ 3000 per month is sufficient for the father to pay her until such time as the Italian courts can consider matters further. I expect him to agree this as it is within my summary assessment of his means. It is not ‘MPS’ by the backdoor but is providing for the welfare of his children in the circumstances of their return pending the Italian courts’ determination.[81]Having considered protective measures in this context, I am satisfied the mother can return to Italy with the children and they will not face an intolerable situation. The separate living arrangements and undertakings will protect the children from the risk of domestic abuse and the Italian authorities are capable of ensuring this. I would not order, as the father invited me to, to return the mother and children to reside at the former matrimonial home. This is because of the father’s admitted actions there, which appear to the court to amount to domestic abuse albeit he does not describe it in that way. A return to the former home would be oppressive. If the mother wishes to return to Italy and reside somewhere other than the city where they lived, I decline jurisdiction to order otherwise. However, in that context, combined with the other protective measures and with the financial support I have determined is necessary, I am satisfied the children can return without any risk of intolerability.

Conclusion

[82]I will make a return order to Italy for both S and T. The Easter holidays provide a good time for this to take place.[83]I ask counsel to draft an order to give effect to the return order made.

Cited in 1 later judgment