BN (A Child)(Abduction: Art 13(b)), Re [2026] EWHC 1158 (Fam)

[2026] EWHC 1158 (Fam)

Case No FD26P00096

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985

INCORPORATING THE 1980 HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

IN THE MATTER OF BN

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

Date 14 May 2026

Before

MR DAVID REES KC

(Sitting as a Deputy Judge of the High Court)

(In Private)

(Re BN (A Child)(Abduction: Art 13(b)))

Between

ENApplicant

SNRespondent

Mr Jason Green (instructed by Anthony Louca Solicitors Limited) for Applicant

Mr Jonathan Rustin (instructed by McAlister Family Law) for Respondent

Hearing Hearing date: 13 May 2026

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 David Rees KC:

[1]This is an application under the 1980 Hague Convention for the return of a two year old boy, BN to the State of Connecticut in the United States of America. The Applicant EN, is the child’s father who appears by Mr Jason Green of Counsel. The respondent mother, SN is represented by Mr Jonathan Rustin of Counsel. I am indebted to both counsel for their skeleton arguments and oral submissions.

[2]The parents met in 2020 and were married in 2022. The father is a dual British and US Citizen, whilst the mother is a British Citizen. Since 2023 she has had a US Green Card permitting her to live and work in the USA. The child has dual British and US citizenship. At present he only has a US passport.

[3]When the parents met, they were living in the UK. However, in June 2022 they relocated to Connecticut and were married there later that year. The child was born in late 2023 in Connecticut and it is common ground that until January this year he had lived nowhere else.

[4]The child has encountered a range of medical issues and is experiencing developmental delay such that he is currently not able to stand or walk. He has been diagnosed with a number of conditions and a genetic anomaly but I understand that these do not fully explain his developmental delay, and this has been a source of serious concern for both of his parents. It also appears to have been a trigger or cause of serious and extremely concerning behaviour on behalf of the father.

[5]The mother’s case is that since the child’s birth, and especially since issues with his development have become noticeable, the father has become increasingly hostile and demeaning towards her. He has displayed aggressive behaviour, shouting at the mother and child and she alleges that he caused her pain in an incident in October 2025 when he pushed her knee joint in an attempt to demonstrate to her the difficulties that the child was having in standing.

[6]The father had installed a video recording system in the matrimonial home, so some of this conduct was caught on video. In support of her case the mother has exhibited nine video clips showing the father shouting at her and the child and displaying aggressive behaviour. I will expand upon these videos, which are very troubling to watch, later in this judgment.

[7]In late November or early December 2025, the mother contacted a domestic abuse helpline in Connecticut seeking advice on how she and her son could safely leave the father and indicating that she would like to return to the UK “legally and safely”.

[8]In January 2026 the parents and child travelled to the UK for a graduation ceremony for the father. He had been undertaking a part-time degree in the UK when the parents first met and completed this from the USA. The parents stayed in an Airbnb flat. Whilst here, on 19 January there was an incident, the precise facts of which are disputed. The father accepts that he was agitated on this occasion and under immense stress. The mother describes the father shouting and threatening to break her fingers and flicking her forehead. In any event, the mother waited until the father had gone out before leaving herself with the child. She approached two police officers on the street and requested assistance. She was taken to a police station and gave a statement. On police advice, she did not return to the property, and the following day she travelled to her parents who live in the north of England.

[9]In the meantime, the father had reported the mother and child missing to the police who informed him that they were safe and well. He also sent text messages directly to the mother.

[10]On 22 January the mother texted the father to confirm that she and the child were well. However, she did not provide further information or respond to questions sent by the father. The following day she attended a police station close to her parents’ home and provided a further statement.

[11]The father returned to the USA as planned on 1 February 2026, leaving the mother’s and child’s passports with English solicitors. On 2 February, the mother made a complaint against the father by email to the Connecticut police and subsequently spoke to officers in that jurisdiction.

[12]These proceedings were issued by the father on 10 February 2026, and a location order was made to identify where the mother and child were living. They were initially listed for a final hearing on 31 March 2026, but owing to delays in obtaining expert evidence from a Connecticut lawyer, this hearing was vacated by consent and relisted for 16 April. That hearing was then adjourned as a result of ongoing delays with the US expert and it was relisted for a two day hearing on 13 and 14 May.

[13]On 22 April, following concerns about the mother’s presentation at the hearing on 16 April and a subsequent letter from her GP, an application was made by the mother for permission to instruct an expert psychiatrist as to her mental health. That application came before me on 1 May, and I permitted the instruction of the expert, there being evidence that a report could be provided in time for the final hearing.

[14]The expert instructed was Dr Michael Weir who produced a report dated 10 May 2026. In his report he concluded that the mother was suffering from Post Traumatic Stress Disorder (“PTSD”) or, potentially, complex PTSD the latter arising from a repeated prolonged or chronic exposure to trauma, whereas PTSD is often caused by a single episode of trauma. His report deals with the potential impact of a return to Connecticut on this diagnosis. Dr Weir attended the final hearing by remote video-link and was cross-examined by both counsel.

The Law

[15]It is not in dispute that the mother’s retention of the child in England in January of this year was “wrongful” in the sense of the 1980 Convention and in breach of rights of custody being exercised by the father and that as at the date of the retention the child was habitually resident in Connecticut. However, by way of defence to the father’s application, the mother relies upon Art 13(b) of the Hague Convention. This provides as follows:

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution, or other body which opposes its return establishes that: … (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

[16]The general principles governing the assessment of an Art 13(b) defence are well-established and there was no real difference in the submissions of the parties on the essential framework that the court has to apply.

[17]In Re IG (A Child) (Child Abduction: Habitual Residence: Art 13(b))

[2021] EWCA Civ 1123

Baker LJ summarised the applicable principles thus (at [47]):

“(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.”

[18]Further points that I must consider include the following:(1) The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process (Re E (Children: Custody Appeal)

[2011] UKSC 27

at [32]).

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

(3) Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. Where the risk is serious enough the court will be concerned not only with the child's immediate future because the need for protection may persist (Re E at [35]).

[19]I was also taken to what Lord Wilson said in the case of Re S (A Child)(Abduction:Rights of Custody)

[2012] UKSC 10

about cases where the impact of a return on a parent’s mental health is in dispute. There at [27] he said: “In In re E this court considered the situation in which the anxieties of a respondent mother about a return with the child to the state of habitual residence were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child's situation would become intolerable. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk; and will, among other things, ask itself whether they can be dispelled. But in In re E it was this court's clear view that such anxieties could in principle found the defence. Thus, at para 34, it recorded, with approval, a concession by Mr Turner QC, who was counsel for the father in that case, that, if there was a grave risk that the child would be placed in an intolerable situation, "the source of it is irrelevant: eg, where a mother's subjective perception of events lead to a mental illness which could have intolerable consequences for the child". Furthermore, when, at para 49, the court turned its attention to the facts of that case, it said that it found "no reason to doubt that the risk to the mother's mental health, whether it be the result of objective reality or of the mother's subjective perception of reality, or a combination of the two, is very real".

[20]There was a little more difference between counsel as to the duration and extent of any protective measures. For the father, Mr Green argued that undertakings should only extend to the point where the matter can be considered by the court of habitual residence and drew my attention to the dicta of Donaldson LJ in C v C (Abduction: Rights of Custody Abroad)

[1989] 1 WLR 654

that:

“It will be the concern of the court of the state to which the child is to be returned to minimise or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those courts in the circumstances of the case, the courts of this country should assume that this will be done.”

[21]He also referred me to an extract from the 2020 HCCH 1980 Child Abduction Guide to Good Practice which (at [44]) states:

“Protective measures may be available and readily accessible in the State of habitual residence of the child or, in some cases, may need to be put in place in advance of the return of the child. In the latter case, specific protective measures should only be put in place where necessary strictly and directly to address the grave risk. They are not to be imposed as a matter of course and should be of a time-limited nature that ends when the State of habitual residence of the child is able to determine what, if any, protective measures are appropriate for the child. In certain circumstances, while available and accessible in the State of habitual residence, measures of protection may not be sufficient to address effectively the grave risk. An example may be where the left-behind parent has repeatedly violated protection orders”

[22]For the mother, Mr Rustin drew my attention to the passage from Re E which I have mentioned above, that 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. He also made the following additional points:(1) The efficacy of any proposed protective measures must be addressed with care, with “the more weight placed by the court on the protective nature of the measures when determining the application, the greater the scrutiny required in respect of their efficacy” (Re S (supra) [56];

(2) Protective measures may “include general features of the home state such as access to courts and other state services” (Re C (Children)(Abduction: Article 13(b))

[2018] EWCA Civ 2834

[40]); and

(3) When considering the efficacy of undertakings, the court must, when deciding what weight can be placed on them, “take into account the extent to which they are likely to be effective” which “applies both in terms of compliance and in terms of consequences, including remedies, in the absence of compliance” (Re C [43];

[23]If I am satisfied that the mother’s Art 13(b) defence is made out then a discretion to refuse a return arises. Mr Rustin properly accepted that, at least in theory, this discretion is at large. However, as Baroness Hale observed in Re D (Abduction: Rights of Custody)

[2006] UKHL 51

at [55]:

“…it is inconceivable that a court which reached the conclusion that there was a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate.”

The Evidence

[24]I turn then to look at the evidence in greater detail.

[25]The mother describes the father as being controlling in a number of ways from the outset of the relationship, expressing opinions on how she dressed, what she ate and the people she was in contact with. She states that on reflection he began isolating her so that her world gradually narrowed and her independence and individuality reduced in subtle but cumulative ways. She describes early in the relationship agreeing to a threesome at the father’s suggestion, but subsequently refused to do this again after their move to the USA.

[26]In 2022 they relocated to Connecticut where the father had family. For the first year the mother’s immigration status did not permit her to work and she was entirely financially dependent on the father who would pay her $2,400 a month. She began a PhD. She says that attempts by her to build friendships were undermined by the father who was often confrontational and argumentative in social situations. However she also describes the father as putting her on a “pedestal” during this period.

[27]Within the family home in the USA the father set up a set of fixed security cameras. The mother was aware of this and had access to the feed. However, she describes the father on a number of occasions using the recorded footage to assert that he was correct or that the mother was wrong, and she describes becoming increasingly aware of being recorded within her home environment, something that heightened her sense of being monitored rather than supported.

[28]The child was born in late 2023, and as he grew older it became clear that he was not reaching developmental milestones. This was clearly a source of frustration for the father and a point of tension between the parents, with the mother describing the father setting arbitrary dates for milestones to be reached; demanding that she should follow his directions to ensure the child’s physical development; criticising her for carrying the child too much; and telling her that she should make the child walk everywhere even if he cried.

[29]The mother describes verbal abuse that she received from the father and describes one incident in October 2025 when he pushed her knee causing her pain. By autumn 2025 the father was criticising the mother for not disciplining the child correctly, and demanding that she scream at the child. The mother describes the atmosphere within the house as unpredictable and tense and the father as volatile, and says that the father had threatened to kill her if she left with the child. There was an incident on 29 November 2025, when the father aggressively told the mother to leave him and the child, criticising her parenting and saying that she should have yelled at the child.

[30]In late 2025 the mother contacted a domestic abuse service in Connecticut, seeking help about leaving what she described as an abusive relationship. In the text exchange she says “I no longer feel like the strong person I once was” and says that she would like to find a way to return to the UK with the child “legally and safely” and reported a past threat by the father to kill her if she took the child away from him.

[31]In January 2026 the family travelled to the UK for the father’s graduation ceremony. On 19 January 2026 the father became increasingly agitated, the mother describes him as “escalating”. He shouted at her in the child’s presence and made a threat that if anything were to happen to the child he would kill her and her entire family, blaming the mother for his loss of temper and stated that if the child was not walking by the age of two and a half he would start breaking her fingers one by one because she faced no consequences for her “bad behaviour”. During this exchange he flicked her forehead and told her to use her brain. This led to the mother leaving and taking the child as I have already described.

[32]The father’s evidence of the relationship is somewhat different. He describes himself and the mother sharing day to day parenting of the child, with a routine centred around the child’s care. Much of his work was remote so that he was able to remain at home for substantial portions of the day and take an active role in the child’s care. He described the source of the tension within the relationship as the uncertainty surrounding the child’s development and the absence of clear answers from the medical professionals. He describes the difficulties that the child was having and the medical appointments that they had. However, he states:

“My distress was caused by the fact that I regarded his gross motor problems, particularly walking and mobility, as the central urgent issue, whereas [the mother] did not treat them with the same seriousness, urgency and consistency”

The father continues:

“I was not upset simply because our son was delayed. What caused my frustration to escalate was that [the mother] was not recognising the severity of the gross motor problem and was not focussing enough on the central issues, namely that our son needed to walk, stand, bear weight through his legs, and become mobile”

[33]His evidence is critical of the mother, describing what he saw as a lack of recognition on her part of the seriousness of what was happening. He describes becoming distressed and reacting badly and expressing himself in an unacceptable way. He confirms that there was a difference between him and the mother on disciplining the child and states his view that the child sometimes needed a firm verbal cue, such as a stern “Hey” accompanied by a serious expression. He describes the mother’s reluctance to be firm as upsetting and frustrating because it meant that he was always the stricter parent. He accepts telling the mother to “yell” or “scream” at the child but denies that he was suggesting that she should abuse or terrify him. He accepts that the tone and language he used at times (and captured in the video clips) was inappropriate, but that it arose from that parenting dispute and not from any wish to mistreat the child.

[34]The father describes the decision to install cameras in their home as a joint one. He denies seeking to control the mother in any way or to deprive her of her autonomy. He makes clear that the sexual relationships that they have had have always been entirely consensual, and that the provision of funds to the mother (who was free to spend or save these as she wished) was not any form of control, although he accepts stopping these payments following the mother’s retention of the child. He explains that he has now begun therapy to assist him in dealing with his frustration and loss of control. He does not accept the mother’s account of the events in January 2026 that led to her taking the child.

The Videos

[35]In this case the parents’ written evidence is supported by a number of short video clips. As I have already identified, there were cameras set up across the family home and the mother has provided me with nine short clips of recordings from that system. These clips were taken on various dates between 7th February 2025 and 3rd December 2025 (although most date from November 2025). They were accessed by the mother after she had left the father, but before he prevented her from having access to the system. I am told that the system retains three months of recordings at any time.

[36]These clips are important evidence because they corroborate what the mother describes in her written evidence about the father’s behaviour towards her and the child. They also provide a vivid and profoundly disturbing picture of the level of domestic abuse that they were suffering.

[37]The clips are shocking viewing. Dr Weir described them as being at the extreme end of domestic abuse, short of inflicting actual violence and I agree with this characterisation. In all of the clips the father displays clear signs of anger, indeed fury, directed towards the mother, often in the presence of the child, who is also, sadly, the subject of some of the father’s direct anger. In some of the clips he can be seen to be prowling the room, shouting aggressively and swearing profanely. In one clip he approaches the mother who is kneeling on the floor supporting the child and comes very close to the mother and child’s face, screaming at them, before snatching the terrified child away from the mother.

[38]There is a substantial difference in size between the father and mother. He is a large, heavily built individual. She is small. In all of the clips the mother appears as meek and submissive. She appears to be trying to defuse the situation; not arguing back; looking away or downwards; trying to comfort the child and shield him from the father’s fury.

[39]The theme of most of these clips is the father’s concern that the child is unable to stand and to walk. The father appears to think that this is the mother’s fault, for example yelling on 2 November 2025:

“Just do what I say and stop telling me what to think. Who gives a f*** what you think. You f***ed up my child. You don’t get to think.”

Earlier on the same day he aggressively demanded that she make him walk. 40. The father’s belief that the mother should be firmer and shout at the child to discipline him is made clear from the clips. A vivid demonstration of this approach is provided in a clip from the 1 November 2025 that shows the father suddenly shouting at the child at a meal table, clearly terrifying the child; then saying to the mother “like that... did you see him shiver”.

[41]The father accepts that these clips do not reflect well upon him, and describes himself as “speaking in an aggressive and unacceptable manner” but invites the court to consider the extreme stress that the family was under because of the child’s developmental difficulties. This may reflect the father’s internal reasoning behind his extreme behaviour, but it is not an excuse (as the father acknowledges) and it also leaves a considerable concern that this behaviour may be repeated in the future, as the child’s developmental delays are likely to be ongoing. I also consider that the father’s evidence and the way that he has put his case demonstrates that he has little insight into the effect that the behaviour recorded in these clips has had on the mother and child.

[42]I have also viewed a further 11 very short video clips exhibited by the father of his interaction with the child. These, by contrast, show a loving father interacting with a happy child. These are scenes filmed on a phone, rather than through the fixed security cameras, so that the father was immediately conscious that he was being filmed (unlike in the clips exhibited by the mother). I have no doubt that that there were periods when he could be charming and pleasant. However, the mother’s case is that the atmosphere within the home was unpredictable and tense and that the father’s behaviour was volatile. This entirely accords with the contrasting video evidence that I have been shown.

Dr Weir

[43]As I have already mentioned, the court has received a psychiatric report into the mother from Dr Michael Weir, who was cross-examined about this by both counsel. Dr Weir met with the mother for about 1.5 to 2 hours and subsequently spoke to her on the phone for another 20 minutes or so for some follow-up questions. He has seen the bundle in these proceedings and viewed the video clips exhibited by the parties.

[44]The mother does not have any pre-existing mental health disorder, although she had a history of being bullied at school. Dr Weir states that as the mother began describing her time in Connecticut her composure deserted her and she became tearful and agitated. He describes her thus:

“Her agitation and hearing problem were impediments to the interview, but she was an engaging, intelligent historian. A comfortable degree of eye contact was maintained and a viable interpersonal rapport developed between us. I did not consider she displayed any features of depression, but she was exhibiting the core features of PTSD including flashbacks, intrusive nightmares, avoidance of events that reminded her of past trauma, hypervigilance and severe agitation. Unlike many people with PTSD, I noted she wasn’t drinking excessively or using illicit drugs. Her cognitive function was intact.”

[45]His conclusions are as follows:(1) The mother manifests the florid symptoms of PTSD but because she was subjected to sustained trauma for over 2 years and continues to be, Dr Weir’s preferred diagnosis is Complex PTSD. Complex PTSD usually arises from repeated prolonged, or chronic exposure to trauma, whereas PTSD is often caused by a single episode of trauma.

(2) The mother remains very traumatised and psychosocially compromised. If she returned to Connecticut her condition would deteriorate further and probably evolve into a severe and relapsing chronic disorder.

(3) The mother remains severely symptomatic and a return to Connecticut would negatively impact her psychological functioning, mental health and parenting. Her treatment and recovery would be compromised by re-exposure to the environment where she was traumatised and any contact with the individual who traumatised her.

(4) Protective measures not based on the findings of a full psychological forensic assessment of the father and the risks he presents to the mother, her family and the child will provide no reassurance about their emotional, psychological and physical safety if they returned to Connecticut. Further, [the child’s] emotional, psychological and possibly physical safety are dependent on his mother recovering from complex PTSD and remaining well. Dr Weir believes that the mother’s mental health and wellbeing would markedly deteriorate if she returned to Connecticut.

(5) In the first instance, the mother’s treatment and recovery requires the removal of any threat of her being returned to the USA. Until that is achieved, she will remain in an ongoing state of distress and traumatisation under the perceived control of the father.

[46]Cross examined by Mr Rustin, Dr Weir explained that with untreated PTSD, the traumatic events are never “filed away” and described the individual living in a constant state of terror and losing their ability to cope. If the mother returned to where the trauma took place she would be retraumatised with little prospect of a full recovery. He described that this could lead to an intensification of her symptoms with flashbacks and intrusive thoughts, heightened anxiety and a constant state of distress. He identified that the child would pick up on this and it would negatively impact him, particularly given that this child is himself vulnerable and in need of extra support and attention.

[47]Dr Weir considered that in order to achieve a recovery the mother would need to be removed from the circumstances of the original trauma, but with stability and support he was hopeful that she would be able to recover. He described the importance of the support network that the mother’s family provide for her, and explained that if this support were removed her recovery would be diminished. He described the mother as “a sick lady” requiring “respite, security and treatment”.

[48]Dr Weir stood by a suggestion in his report that there may be a sadistic element to the father’s behaviour consistent with sociopathic and narcissistic personality traits and considered that an independent assessment of the father by a forensic psychologist would be needed. He considered that the sessions of therapy that the father had evidenced that he had undertaken would not be sufficient to deal with the issues presented here.

[49]For the father Mr Green challenged Dr Weir about the number of Convention cases that he had reported in and Dr Weir confirmed that whilst he had acted as an expert in the family courts in around 1,500 cases, these were usually public law proceedings and this was only his second Convention case. Questioned about the amount of time he had spent with the mother, Dr Weir explained that a diagnosis of PTSD was fairly easy to make. Mr Green put to Dr Weir that the mother may have made up the allegation of a physical assault as she had not mentioned it when contacting the domestic abuse helpline or in a police report, and asked how that might affect his diagnosis. Dr Weir indicated that it would not affect his view significantly as there was other evidence, in particular the videos, which supported the diagnosis and that he was confident that his diagnosis was correct. He accepted that the mother currently appeared to be coping with caring for the child, but referred to the support that she was receiving from various members of her family.

[50]Dr Weir accepted that treatment would be available for the mother in the USA, provided that there were funds that could be used to pay for it. Mr Green challenged Dr Weir on his understanding of “protective measures” and it appeared that Dr Weir was to a large extent looking ahead to what might ultimately be required following a full welfare hearing rather than to the immediate steps that might need to be taken to ensure a safe return under the Convention.

Protective measures

[51]There has been the usual exchange between the parties on the scope of appropriate protective measures. Expert advice on Connecticut law has been received from a US lawyer, Mr Jeremy Morley, although I note that the heading to his report states that the attorneys in his firm are admitted to practice law only in New York. In any event, Mr Morley advises that Connecticut has a welfare based family law system. He advises that an order of the English court containing protective measures would not be directly enforceable in Connecticut, although equivalent protection could be put in place through a restraining order or a temporary custody order.

[52]The suite of protective measures offered by the father includes the following:(1) Not to interfere with the mother’s immigration status;

(2) Not to start civil or criminal proceedings in the USA for the punishment of the mother for the retention of the child in the UK;

(3) To withdraw any police complaint in relation to the retention;

(4) Not to remove the child from the mother’s care without her consent or an order of the Connecticut court;

(5) Not to intimidate, harass or pester the mother;

(6) Not to enter any accommodation where the mother is staying;

(7) Not to surveil or monitor the mother in any way;

(8) To provide interim financial support of $1,200 per month for three months or until the first hearing in the Connecticut court whichever is shorter;

(9) To maintain health insurance for the mother and child until the Connecticut court orders otherwise (the mother seeks this measure without this limitation) and to meet any treatment costs not covered by the insurance until the date of the first hearing in Connecticut;

(10) To meet the costs of the mother and child’s travel to the US;

(11) To vacate the family home and meet the mortgage thereon until the first court hearing (the father had also previously offered to pay $1,700 per month for rent and utilities up to the date of the first hearing);

(12) To pay to put in place a temporary custody order containing these protective measures on a no admissions basis;

(13) To participate in appropriate parenting / coparenting support if recommended or directed;

(14) To surrender any firearms.

[53]The mother seeks further protective measures that are not agreed by the father:(1) She seeks $2,400 per month (as opposed to the $1,200 offered by the father) and asks that this not be limited to the first hearing in the Connecticut court;

(2) She seeks a further $2,000 per month to fund her legal fees and a lump sum of $19,080 to fund the purchase of a car, a legal retainer and an immigration application.

(3) She also seeks an undertaking by the father not to vary or discharge these measures for a defined period of between 3 and 6 months or indeed that they remain in place until the final determination of the Connecticut proceedings.

The Parties’ Arguments

[54]For the mother, Mr Rustin’s primary argument is that Dr Weir’s psychiatric evidence is that a return order would have such an impact on the mother and her ability to parent the child that he will be at grave risk of psychological harm or being placed in an intolerable situation. He argues that this grave risk arises from the very fact of a return to Connecticut and that no supporting protective measures such as the provision of housing, an income or undertakings not to approach the mother are capable of ameliorating this risk.

[55]As a secondary position, he argues that the protective measures offered by the father are, in any event, insufficient. Whilst recognising that the general position is that when looking at protective measures, the court is primarily concerned with the period up until the date of the first hearing in the country of habitual residence, Mr Rustin argues that this is the type of case envisaged by Baroness Hale in Re E where the Court needs to be concerned beyond the child’s immediate future. He states that in the circumstances of this case, this mother requires the additional certainty that she will have her and the child’s accommodation met, and her financial needs including legal fees and health costs met, not just until the first hearing in Connecticut, but for the duration of those proceedings. Otherwise, this will heighten her anxiety and lead to the symptoms and consequences described by Dr Weir.

[56]Mr Green sees the case very differently. He argues that the mother’s allegations must be treated with great caution, pointing to inconsistencies that he has identified in the mother’s case:(1) He contrasts the mother’s assertion that the retention of the child in the UK was not pre-planned with her indication a few weeks earlier to the domestic abuse helpline that she wanted for her and the child to relocate to the UK;

(2) He points out that she told the helpline, a friend and three police forces that she was never physically abused by the father but now asserts that she had been the victim of physical abuse;

(3) She alleges financial abuse but accepts being given $2,400 per month to spend or save as she wished.

(4) She relies on the fixed cameras as evidence of controlling behaviour, yet these were placed there by agreement and the mother herself relied on them.

(5) She has curated video excerpts. However, despite alleging to the Connecticut police that the father said that he would cut her hands off if she left him, no such video is exhibited.

(6) Her case gains in seriousness every time she files evidence, something demonstrated by Dr Weir’s report.

[57]Mr Green’s skeleton argument therefore concludes that:

“There must … be a real question in this case as to whether the matters relied on by the mother are capable of reaching the threshold of a grave risk of physical or psychological harm or of otherwise placing the child in an intolerable situation having regard to the narrow terms of Art 13(b).”

[58]In any event Mr Green argues that any risk can be properly addressed by the protective measures offered by the father. He points to the evidence of Mr Morley that Connecticut has a sophisticated and well-funded police force and child protection resources. As to the arguments concerning the mother’s mental health he identifies:(1) The mother has never suffered with any previous mental health issues.

(2) Dr Weir’s report is based solely on the mother’s self-reporting and he has not considered or assessed any tendency to exaggerate on her part.

(3) Dr Weir’s report strays from that of being a neutral expert into taking the mother’s side with his view of the father being wholly negative.

(4) Elements of Dr Weir’s evidence were quite hyperbolic (with references to the mother being “imprisoned” or on “on death row”), and he became quite defensive when cross-examined.

(5) Dr Weir has also purported to find that the father has exhibited sadism and to diagnose him, based solely on the mother’s self-reporting.

(6) The mother appears currently to be coping and caring for the child.

(7) There is no evidence that the support that she might require is not available to her in Connecticut or that she would be unable to access it.

(8) On the basis of the comprehensive protective measures offered by the father, she will be well-protected, housed and financially supported when she returns.

Discussion

[59]I must begin by considering whether, if the mother’s allegations 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 on being returned to Connecticut. There is abundant evidence to satisfy me that such a grave risk exists. Despite Mr Green’s attempts to identify contradictions in the mother’s evidence, the fact remains that the broad thrust of her evidence that she has been the subject of extremely serious and sustained domestic abuse by this father is wholly consistent with the clear and shocking video evidence that I have seen. I consider Mr Green’s argument that this is a case where the matters relied on by the mother are not capable of meeting the Art 13(b) threshold to be wholly without merit.

[60]For the purpose of the exercise I must conduct I consider that the risks that the father poses to the mother do extend to physical abuse, coercive control and financial abuse. The specific incident of physical abuse that the mother refers to when the father pushed her knee is wholly credible to anyone who has watched the videos of the father’s behaviour, when he appears to have no self-control and a compete lack of awareness of the effect that he is having on both the mother and child. It seems to me that the father’s behaviour, language and actions recorded in those videos carry with them a clear and present threat of physical violence, and even if actual violence was deployed only occasionally or indeed not at all, the continuing threat of such violence is plain, resulting in the mother experiencing what Dr Weir described (and I agree) as a state of terror. As to Mr Green’s argument that the mother did not initially report this incident of physical violence, it is not uncommon for a victim of domestic abuse not to report everything at the first instance, and I see it in the context of the other allegations made by the mother which are clearly and demonstrably true when assessed by reference to the video evidence.

[61]More broadly, the mother’s description of her life with the father is consistent with coercive control. The fact that the father immediately cut off the mother’s source of funds upon the retention of the child also points towards a willingness on his part to exert control through financial means. This is therefore not a case where the evidence would enable me to confidently discount the possibility that a grave risk of harm arises in respect of any of these matters.

[62]I have considered Dr Weir’s report carefully. I accept that at times his evidence strayed into broader welfare considerations rather than the more focussed test that Art 13(b) requires. Nevertheless, he has read the parents’ evidence, seen the videos of the incidents exhibited by the mother and met with the mother for some time. Having heard his oral evidence, he was quite unshaken on his key conclusions and I accept his conclusion that the mother(a) is suffering from PTSD, most probably complex PTSD arising from the behaviour of the father towards her and the child and

(b) that a return to Connecticut would re-expose her to the environment where she was traumatised, would cause a deterioration in her condition, which would probably evolve into a severe and relapsing chronic disorder and would negatively impact her functioning and her ability to parent the child. I am therefore satisfied that this too presents a grave risk to the child of either psychological harm or of the child being placed in an intolerable situation. I make clear I do not accept Mr Green’s submission that Dr Weir had essentially taken the mother’s side. Whilst he was in no doubt from what he had read and seen that the mother was a victim of domestic abuse, I have no reason to suppose that his conclusion that the mother was suffering from PTSD and the consequences of a return to her mental health represented anything other than Dr Weir’s professional opinion.

[63]I must therefore consider whether the protective measures offered by the father would be sufficient to ameliorate the identified risks. I have concluded that they will not be.

[64]On one level, if the mother’s mental health were not a concern, the package of measures proposed by the father would be likely to go a long way towards ameliorating the risk to the mother and child that a return to the USA would present. As I have described above, the father is willing to provide what is a fairly standard suite of protective measures which would last up to the date of the first hearing before the Connecticut court.

[65]However, even if the mother’s mental health were not a concern, I would not be satisfied with the measures currently proposed by the father. First, I consider the income proposed of $1,200 per month to be insufficient. This is the sum that the father considers that the mother and child should be using for all of their living expenses, including utility bills, food, transport etc. In the course of submissions Mr Green indicated that if this were my only concern the father would be prepared to increase the offered amount. I certainly think an increase in this element is necessary, but that is not my main concern here. Whilst I recognise that Dr Weir’s assessment of the father needs to be treated with caution, his conclusion that the father potentially poses a risk to the mother and child and should be the subject of a forensic psychological assessment is, in my view, a conclusion that he was entirely entitled to reach on the evidence that was before him.

[66]In those circumstances I would be wary of approving any protective measures under which the father was aware of the address at which the mother and child were living. Whilst I accept Mr Morley’s evidence that Connecticut has a well-funded police force and child protection services that could provide protection and support to the mother and child, such assistance is ultimately reactive, and I consider that as an absolute minimum the father should not be aware of where the mother and child were living until the Connecticut court had had an opportunity to consider the risks that he may pose to them. The current protective measures which propose that the mother and child should live in the matrimonial home do not provide that additional degree of protection.

[67]However, and in any event, this is a case where the mother’s mental health, and her ability to parent the child will be placed at risk by a return and I therefore need to consider the protective measures in that context. Viewed through that lens I do not consider that the measures offered will be sufficient to ameliorate the risks posed to the child. Indeed I accept Mr Rustin’s submission that this is a case where no protective measures would achieve this.

[68]Here I go back to Dr Weir’s evidence of the effect that a return to Connecticut would have on the mother. Such a return would continually re-expose her to past trauma and would perpetuate and intensify her problems and symptoms with the risk that her PTSD evolves into a severe and relapsing chronic disorder. Mr Green’s argument that the mother is currently coping and caring for the child notwithstanding her diagnosed PTSD does not meet this point. It is the risk of the mother’s symptoms intensifying upon a return and the effect that this will have on her ability to parent the child that the protective measures must address.

[69]I accept that appropriate medical treatment would be available for the mother in Connecticut, but this would come at a cost, and the father is only proposing to pay for this up until the first hearing of the court in Connecticut. In any event, the ultimate availability of treatment will not remove the immediate risk of the mother being re-exposed to the trauma and her symptoms intensifying that Dr Weir describes. Moreover, a return will deprive the mother of the psychosocial support network that she currently enjoys in England through proximity to family members and which Dr Weir considered to be a “very important” factor in her recovery. Neither parent suggests that the mother has close friends or any equivalent network in the US which she could draw upon in the event of a return. Nor would such an outcome achieve the removal of the threat of a return which Dr Weir has identified as being important for her recovery.

[70]This is a mother coping with the parenting of a young child who has a number of disabilities which are not yet properly understood. It is clear beyond all argument that the bond between this child and this mother is extremely important whilst the father is not in a position to care for the child until the risk that he poses has been properly assessed. I am satisfied that a return to the United States is likely to have a direct effect on the mother’s mental health and her ability to parent the child such that there is a grave risk to the child of either psychological harm or of the child being placed in an intolerable situation and I accept Mr Rustin’s submission that this is essentially a case where no protective measures can ameliorate the risks posed.

[71]Even if this is not correct, I also accept Mr Rustin’s submission that this is the type of case that Baroness Hale had in mind in Re E,and that the circumstances surrounding the mother’s mental health means that the limited duration of the protective measures offered by the father mean that they are in any event insufficient. In a case where the mother is at risk of an intensification of her symptoms and heightened anxiety if a return is ordered, I accept that the lack of any guarantee of accommodation, legal fees, health insurance or other financial means beyond the first hearing before the court in Connecticut would be likely to adversely affect her and her ability to parent the child. Whilst I accept that protective measures cannot be open ended, and would ultimately need to be considered by the courts in Connecticut, I consider that in the specific circumstances of this particular mother and child this is a case where the need for protection would persist beyond that first hearing and a greater degree of reassurance would be required than that currently offered.

[72]I therefore refuse to order a summary return and will dismiss the application. ***************************