A & B (Hague Convention 1980: Art 13(b)), Re [2026] EWHC 1763 (Fam)

[2026] EWHC 1763 (Fam)

Case No FD26P00030

Date 13 July 2026

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Before

MR JUSTICE POOLE

ABF

The Applicant

ABM

The Respondent

Re A & B (Hague Convention 1980: Art 13(b))

Hearing Hearing dates: 18 and 19 June 2026

Jennifer Perrins KC (instructed by Dawson Cornwell LLP) for the Applicant

Katy Chokowry (instructed by Williscroft Solicitors) for the Respondent

JUDGMENT

This judgment was handed down remotely at 10.30am on 13 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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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.

Introduction

[1]This case raises a dilemma familiar to judges of the Family Division. The applicant father (ABF) seeks an order for the summary return of his and the respondent mother (ABM)’s two children, A, a girl aged 10 and B, a boy aged 8, to Cyprus under the Hague Convention 1980. ABM blatantly abducted the children from their home country by retention in England during ongoing family proceedings in Cyprus, thereby and thereafter cutting off their contact with their father. The Convention exists to promote a swift return of children to their home jurisdiction so that decisions about their welfare can be made there. However, ABM alleges that she left Cyprus in order to flee serious abuse by ABF. She alleges that he was coercive and controlling, and sexually and physically abusive throughout their long relationship. She has also alleged that he has abused the children, including sexual abuse of A. She maintains that the Cypriot state and judicial authorities failed to protect her and the children from the father. The mother suffers from mental health issues and, even if a return order were made in respect to the children, refuses to countenance returning to Cyprus where, she contends, she would be likely to suffer a deterioration in her mental health. She defends ABF’s application on the grounds that returning the children would place them at grave risk of harm.

[2]ABF vehemently denies ABM’s allegations, none of which have been tested in court, either in Cyprus or in England. Applications for return orders under the Hague Convention 1980 do not allow for a fact-finding exercise in relation to such allegations. The allegations are extremely serious, but the children have been seen by multiple professionals and there is little evidence that they have been subject to direct abuse. They have each stated that they miss their father. They have not objected to returning to Cyprus. However, ordering their return would either separate them from their mother, so that they would probably have to live with their father who is alleged to have abused both them and their mother, or, if their mother were to return with them, leave them in the care of a mother who says that she would have nowhere to live in Cyprus, no support, will suffer mental health difficulties, and is terrified of the father.

[3]The court is faced with the conundrum of seeking on the one hand to uphold the purpose of the Convention swiftly to restore abducted children to their home country and on the other to protect them against the risk of parental abuse in that country.

[4]In such a case it is important for the court to keep in mind that(i) whilst one parent has evaded justice in the children’s home country and the other may be a perpetrator of abuse, it is not the purpose of the Convention to punish or to reward either parent;

(ii) the court cannot turn back the clock – for good or ill the children’s circumstances have changed as a result of their wrongful removal or retention; and

(iii) when considering the Art 13(b) defence, the court is engaged in an assessment of risk not of welfare.

[5]ABF’s application was made on 19 January 2026, within a month of ABM removing the children from Cyprus on 24 December 2025. She did so with permission of the Cypriot Court, obtained without notice and on strict condition that she should return the children to Cyprus by 10 January 2026. She was required to give a guarantee in the sum of EUR 10,000 to secure compliance with the obligation to return the children. ABM freely admits that she had no intention of returning the children but had decided unilaterally to relocate with them to England, the country of her and ABF’s birth. She therefore misled the Cypriot court.

Background and The Parties’ Evidence

[6]The parties married in Paphos, Cyprus, in 2016. Both were born in Yorkshire and are British nationals. ABF is some thirteen years older than ABM and their relationship started in 2004 when she was only 18. The parties lived together in the city of their births and their two children were born there. The family relocated to Cyprus in 2020. ABF works online. ABM did charity work. The children attended school in Cyprus and speak fluent Greek.

[7]The marriage broke down in 2024. In July 2024, ABM moved herself and the children to a location in Cyprus which she did not disclose to ABF. He contacted the police and was able to locate the mother and children. The mother later moved with the children to various other locations around Cyprus including to a refuge. On 25 July 2024, ABF was charged in Cyprus with harassment and psychological trauma against the mother. A day later, welfare proceedings were initiated in the Cypriot family court. Soon thereafter the court granted ABF unsupervised contact with the children. The children were put on a “stop list” preventing their removal from Cyprus. On 8 April 2025 ABF pleaded not guilty to the criminal charges against him.

[8]In the first half of 2025, the family court expanded the father’s time with the children. In August 2025, ABF issued a contempt of court application in Cyprus seeking to enforce the child arrangements orders then in place. The mother had recently taken the children to live in a refuge or “shelter” having made allegations that the father had abused them. In his application ABF alleges that the mother has been guilty of alienating behaviour. He said to the Cypriot court that he wished ABM to be punished.

[9]On 24 October 2025, ABF travelled to England for work purposes but was arrested on his arrival at Liverpool airport on allegations of coercive control made by the mother. He was released the following day but on bail conditions that prevented him leaving the country and from having contact with ABM and the children save with the permission of the court. The conditions prevented him from travelling to Cyprus to answer the criminal charges there. It was not until 22 May 2026 that his bail conditions were varied to allow him to return to Cyprus, which he did on 25 May 2026. The trial of the criminal charges against him in England is listed for June 2028. Meanwhile the criminal proceedings in Cyprus have been adjourned to December 2026 to consider whether they should continue, since the complainant, ABM, is currently not prepared to return to Cyprus for the purposes of those proceedings or at all.

[10]On 18 December 2025, ABM applied without notice to the family court in Cyprus for permission to take the children on holiday to the UK from 22 December 2025 to 10 January 2026. As already noted, the application was granted with ABM promising to the court to return the children by 10 January 2026 and an order that ABM shall guarantee payment of EUR 10,000 in the event that she should fail to do so. This order removed the children from the “stop list” for the duration of the holiday. The mother brought the children to England on 24 December 2025 and on 7 January 2025 her solicitors in England wrote to ABF inviting him to consent by the following day to the children residing in the UK. He swiftly responded that he did not consent. He did not know where the children were. He made his application herein.

[11]Initial orders in these proceedings were made without notice and for the purpose of locating the mother and children. Once they were located, Mr Justice MacDonald gave detailed directions on 29 January 2026 leading to a final hearing. The pre-trial review was heard by Ms Butler-Cole KC on 27 March 2026 when permission was given for the joint instruction of experts in Cypriot family law and psychiatry. Reports were then received from Ms Dekatris and Dr Ratnam respectively. The final hearing was listed before me for two days beginning on 18 June 2026.

[12]ABF’s evidence is within his single statement of 19 March 2026 and his solicitor’s initial statement in the proceedings dated 18 January 2026. He also set out a schedule of protective measures. ABM’s evidence is contained within her single witness statement, with exhibits, dated 25 February 2026, her Answer, and her response to protective measures proposed by ABF.

[13]Neither party gave oral evidence, as is usual in such proceedings. The single issue is the mother’s Art 13b defence. Relevant to that defence is ABM’s case that she will not return to Cyprus even if a return order is made in respect of the children. I was invited by Ms Chokowry to hear oral evidence from ABM restricted to her decision not to return. Ms Perrins KC for AMF submitted that I should not hear oral evidence.

[14]ABF’s case is that the court should not accept ABM’s assertion that she would not return. The issue of whether ABM will or will not return in the event of a return order regarding the children, is highly relevant to the Art 13(b) defence. Nevertheless, I decided that I should not hear oral evidence from ABM. I was greatly assisted by the judgment of Peter Jackson LJ in In re R

[2025] Fam 67

[2024] EWCA Civ 1296

in which, at paragraphs [38] to [40] he said:

“38 The summary assessment of whether a parent is likely to return and how they will react to the court’s decision will not always be easy, and a reasoned conclusion is unlikely to be disturbed on appeal. In some of the above cases, conclusions were expressed as findings of fact, made on a balance of probabilities. That was unobjectionable in the individual cases, but in assessing the likelihood of a parent not returning, the court is not addressing a binary issue of fact (such as consent: see Re W [2019] Fam 125at para 58). Instead, it is asking whether, factoring its assessment on this issue into the evidence as a whole, that parent has established an article 13(b) grave risk to the child if a return order is made. In that context, the court is assessing likelihood on a summary basis, not finding facts. 39 The question of whether oral evidence should be heard on this issue was considered by Sir Andrew McFarlane P in Re C [2022] 1 FCR 44 at paras 59—61: “59. On the question of whether the judge fell into error by not requiring the mother to give oral evidence, it is clear that there is no reported authority on the point in this context. Hague Convention proceedings are summary and, save where it is necessary to do so on issues of habitual residence or consent and acquiescence, oral evidence is not adduced. In the present case, neither party either applied for, or even suggested, the mother to be called to give oral evidence. Against that background, it is very difficult to understand how the judge can be held to be in error by not himself requiring her to be called. “59. On the question of whether the judge fell into error by not requiring the mother to give oral evidence, it is clear that there is no reported authority on the point in this context. Hague Convention proceedings are summary and, save where it is necessary to do so on issues of habitual residence or consent and acquiescence, oral evidence is not adduced. In the present case, neither party either applied for, or even suggested, the mother to be called to give oral evidence. Against that background, it is very difficult to understand how the judge can be held to be in error by not himself requiring her to be called. 60. In addition, I do not accept Mr Guptas premise that any oral evidence that the mother might have given would have been short. On the contrary, it would seem likely that, if the mother were to be asked “why?” she would not return to France, her testimony would have opened up and led to her listing all of her complaints about the father’s past behaviour. Such a development would be wholly contrary to the approach taken to Hague cases in this jurisdiction. 61. Whilst, in a case such as this where the issue is one of whether a parent is, or is not, likely to return to the home country with their child if the child is ordered to do so, it may be open to a court to receive oral evidence from that parent on the point, to do so is by no means a requirement. In the present case, the judge is not, therefore, open to criticism for making his determination in the absence of oral evidence.” 40 Judges should therefore ask whether oral evidence is necessary in the case before them. As stated in Re B [2023] Fam 77at para 57, the threshold for permitting oral evidence remains a high one. I would agree with the submission of Reunite, supported by the parties, that where the court detects that a taking parent may refuse to return, it should act early to ensure that the position is addressed in statements, so that oral evidence is less likely to be appropriate. This would include addressing the issue of protective measures as required by the Practice Guidance (Case Management and Mediation of International Child Abduction Proceedings) of 1 March 2023.”

[15]I did not consider it necessary or proportionate to hear oral evidence from ABM on the issue of her determination not to return to Cyprus. Firstly, she has set out her case in her written evidence and I would hear submissions from both parties. I considered that I already had the evidence necessary to make a determination on the issue of whether ABM would return. Secondly, it would be difficult to restrict the oral evidence: ABM’s decision is closely linked to other aspects of the case, including her allegations of abuse, the role of the court in Cyprus, and the response of the police there to her allegations. Thirdly, these are summary proceedings, and the usual course is that the court will not hear oral evidence from the parties save, if the court considers it necessary, when there are disputes about informal or verbal consent or acquiescence.

[16]ABM’s case on not returning to Cyprus is as follows:

“If an order is made for the children to be returned to Cyprus I will not be able to return with them. I have agonised over this decision and given this a lot of thought. I have already been told that I will be arrested if I go back to Cyprus and the children will be placed into the care system there. I have a 10,000 Euros bond to pay which I do not have. If I were to return to Cyprus and that did not happen, it will be like putting a broken person back into a broken system and I will again be having to fight essentially for my life. I do not believe that my mental health can take it and cannot contemplate going back. I do not believe that I will be able to care for the children in Cyprus let alone be a good mother to them. There is no-one else to look after them there.”

[17]ABM’s stated decision not to return is closely related to her account of her experience of ABF’s abuse. She has addressed this at length in her written evidence. For the sake of economy, I shall not reproduce her detailed account in this judgment, but her allegations include: 17.1. The parties’ relationship began when ABM was only 18 and ABF was 31. ABF was manipulative and controlling from the outset, but ABM has only recognised this later. At the time “it was like I was under [his] spell”. 17.2. ABF would punish ABM if he thought she was being affectionate to other men. On one occasion in 2004 she greeted a male cousin with a hug and ABF threw her against a wall and yelled at her in her face “spitting all over me”. 17.3. He was suspicious and jealous if she spent time away from him with friends. On one occasion, when they were out socialising, ABF accused ABM of spending too long in a toilet with a female friend. He held her face tightly in his hand and yelled at her. She was forced to end the friendship. 17.4. ABF was highly sexualised in the relationship, insisting on sex in public places, including in a nightclub which ABM found degrading and humiliating. He insisted on sexual intercourse at least four times a week and if a night was missed, he would say that she “owed him” and she was always sexually in his debt. ABF engaged in rough, abusive sex against ABM’s will, leaving marks on her and causing her pain. He inserted objects into her. He bought clothing for her to wear during sex and gave her no choice about wearing it. 17.5. ABF would take photographs of ABM against her will which he would view when masturbating. 17.6. ABF isolated ABM from family members as well as friends. He caused her to cut off relations with her father who did not approve of her relationship with ABF. 17.7. The parties lived with ABM’s mother for a while in England after they bought a house together with her. ABF was aggressive and threatening towards ABM’s mother and after one particularly bad incident when he shouted at her whilst holding a hammer, and threatened to punch her, her mother decided to move out (December 2019). Her mother contacted a domestic abuse support service and had counselling. The parties moved to Cyprus about nine months later. 17.8. ABF would fly into a rage unpredictably which was frightening to ABM and the children. He would shout in ABM’s face. He would grab her chin and turn her face towards him if ABM looked away. He would block doorways so that she could not leave the room when he was shouting at her. 17.9. ABF would speak down to ABM and insist that she shared his opinions. ABM lost trust in her own judgement. 17.10. In Cyprus in September 2023, ABF shouted at ABM in front of other people at a children’s party. ABM recalls this incident as triggering a deterioration in her mental health. 17.11. In October 2023, ABF announced that he had purchased another house in another part of Cyprus and needed ABM to be the guarantor. He had not discussed this purchase previously. 17.12. ABM became concerned in 2024 that A was showing signs of having been sexually abused (she presumed by ABF). This followed ABM’s mother reporting that A had behaved in a way that suggested she was familiar with a certain sex act. 17.13. In mid-2024, ABF insisted on sex with ABM when she did not want sex. She simply lay there. It was a horrible experience, and she says she “finally realised who he was. Up to that point I still thought it was always me in the wrong.” 17.14. ABF started to use the children to “get at” ABM, whispering to them conspiratorially and using emotionally manipulative behaviour to cajole them into doing what he wanted them to do. He would shout at ABM if she sought to intervene. ABM recognised the pattern of control that she had been subjected to now being exercised on the children, A in particular. 17.15. On 13 July 2024, ABF grabbed ABF’s hand whilst she was cleaning and started yelling at her without any “run-up” to his sudden actions. He pinned her against the wall and was shouting in her face. B was watching and ABF said, “look what mummy is making me do.” ABM had already deposited a packed bag at a friend’s house, but she put some more belongings in the car and left to the friend’s house with the children. 17.16. After the separation, when the children returned from time spent with the father, they would behave differently, B even hitting ABM and saying that she should not “pretend” to love him. ABM puts this down to manipulation of the children by ABF.

[18]I emphasise that these are all allegations that are strongly denied by ABF, the truth of which has not been determined by any court in England or Cyprus.

[19]ABM says that she has been let down by the authorities in Cyprus – the police and social services and the judicial system – which have not recognised the nature or seriousness of the abuse that she and the children have suffered. She complains that ABF trailed her and the children, sitting in a car outside their school, for example. The school reported concerns about ABF to ABM and eventually said they could no longer provide after-school care because of the disruption ABF was causing.

[20]The family court in Cyprus ordered unsupervised contact between ABF and the children. In June 2025, B returned from spending time with ABF sporting “a bruise he could not explain”. ABM went to the police but felt that they brushed aside her concerns.

[21]In contrast to the attitude of the authorities in Cyprus, ABM says that when she reported abuse to the police in England, they investigated and took action. She gave video evidence and the police obtained evidence from other witnesses. In October 2025, ABF was arrested on arrival in England on a business trip. He was placed on bail with a condition that prohibited him travelling abroad. He could not return to Cyprus. He was interviewed under caution. The CPS decided that there was sufficient evidence to prosecute him and he has been charged with control and coercive behaviour under the Serious Crime Act 2015 s76(1) and (11), the particulars of the alleged offence being that between 16 December 2015 and 24 October 2025 in England and elsewhere he “repeatedly or continuously engaged in behaviour which was controlling or coercive, namely isolating, psychologically abusing and financially controlling behaviour towards [ABM]… [when he] knew or ought to have known that the behaviour would have a serious effect on [ABM].”

[22]The police here have recently decided to take no further action against ABF in relation to offences of rape (against ABM) and assault on A. This was “due to evidential difficulties” but ABF was warned that the investigations could be re-opened at any time if further information or evidence becomes available.

[23]ABM suffered a serious right tri-malleolar (ankle) fracture at the end of May 2026 requiring, first, external fixation and then a second operation to reduce the fractures and fix them internally. She has been given post-operative advice to rest and weight-bear in a walker boot “as pain allows” and not to fly until further notice. She has been certified as unfit to work and unfit to fly for three months.

Evidence from Professionals

[24]The bundle of documents provided to me includes a number of assessments and professional reports from both Cyprus and England, before and during the current proceedings: 24.1. An undated Mental Health Report from Irina Michaelidou, Licensed Clinical Psychologist, in English, written after ABM was referred by her doctor to a clinic for psychotherapy. This appears to have been written at some time in the second half of 2024. 24.2. Reports from Vasiliki Kourri, Specialist Psychologist, on the children A and B, both dated 11 February 2025, provided to the Larnaca District Police Department. 24.3. A report by Stella Perikleous Shelter Manager dated 30 July 2025 provided to ABM’s attorney in Cyprus. 24.4. A report by Maria Theofilidou, Specialist Clinical Psychologist, dated 22 September 2025, provided to the family court in Larnaca, Cyprus. 24.5. A Social Welfare Report by social welfare officer, Maria Makrygiogi, dated 5 November 2025, which I have in translation, prepared for the family court in Larnaca, Cyprus. 24.6. A child and Family Assessment carried out by X City Council, in the North of England, dated 6 March 2026. 24.7. A Child Abduction Report by Allison Baker, Family Court Adviser, dated 27 March 2026, and a subsequent Safeguarding Letter dated 3 June 2026. Ms Baker gave oral evidence at the hearing. 24.8. The Cypriot Legal Expert report from Ms Dekatris dated 5 June 2026. She also answered questions from the parties in writing on 17 June 2026. She gave oral evidence at the hearing. 24.9. A report from Dr Ratnam, Consultant in Forensic Psychiatry, dated 10 June 2026. She too gave oral evidence at the hearing.

[25]ABM was referred to Ms Michaelidou by her doctor following her report to the police in July 2024 of “significant psychological distress [following] … ongoing chronic coercive abuse.” Ms Michaelidou concluded that:

“[ABM]’s physical symptoms - nausea, trembling, and flashbacks - are clear signs of severe distress. Her experiences of feeling as though the traumatic events are happening again in the present indicate significant post-traumatic stress. Additionally, the fact that she and her daughter exhibit startled reflexes, a common symptom of trauma, further underscores the deep psychological impact these experiences have had on their lives. In addition, the behaviours outlined in this report highlight significant emotional and behavioural challenges for [B] and [A]. These concerns, particularly the aggression, anxiety, and emotional confusion, are deeply concerning and have become increasingly difficult to manage. The ongoing influence of [B] and [A]’s father seems to contribute to the escalation of these issues, undermining their mother’s efforts to establish consistent boundaries and emotional support. It is recommended that a thorough psychological assessment be conducted to better understand children’s emotional needs and to develop a comprehensive plan for addressing their behavioural and emotional struggles.”

[26]Dr Kourri reported that A was cooperative and talkative. She referred to the “conflicting relationships of her parents during the period in which they all lived together” but that she had maintained a good relationship with both. Dr Kourri recommended that the family should work to “ensure her protection from possible exposure to conditions that may harm her normal psycho-emotional development and mental state.” Dr Kourri found B to be less willing to engage in an assessment, indeed he refused to attend because his choice of room was not accepted. B was reported to suffer from nocturnal enuresis. Dr Kourri noted that he showed “repetitive movements” such as “chewing his shirt and blowing his nose vigorously”. B stated briefly that his parents were not friends and he wanted them to reunite and to spend more time with his father. Dr Kourri recommended the engagement of an occupational therapist and a medical investigation of nocturnal enuresis as well as continued collaboration of the family to protect the home from exposure to conditions that may harm his development and mental state.

[27]Ms Perikleous reported that in the shelter ABM had received psychological support from the staff and that, when reporting incidents of domestic violence, she had exhibited a strong psychosomatic reaction exhibiting increased levels of anxiety, body tremors, and frequently bursting into tears. In her opinion, ABM appeared to have only a superficial understanding of the context of violence to which she had been exposed. During her stay she cared for her children adequately.

[28]Ms Theofilidou reported that ABF was:

“… always on time, polite, patient, followed instructions, emotionally stable, and composed.”

In contrast she reported that ABM’s “presence during the evaluation was characterized by intense emotional charge, with episodes of crying, hysterical reactions, and verbal aggression towards the psychologist. Significant fluctuations in the mother’s mood and severe difficulty managing her anxiety were observed which seemed to be related to the procedure. Although the psychologist was very patients … her behaviour towards the psychologist continued until the termination of cooperation. The emotion she presented was generally not appropriate to the content of the speech and the given situation. She presented with severe difficulty in regulating her emotion (she left 42 messages … on the psychologist’s answering machine), intense irritation and nervousness, mild to moderate concentration and attention problems, lack of trust, severe difficulty following the procedure and instructions, intense reactions and intense resistance to cooperate as requested…. [ABM] expressed strong distrust of the Public Services who have assessed the family in recent years and that they have not understood the abuse she and her children have suffered. She appeared to be frustrated, scared and angry with all the agencies.”

[29]Ms Makrygiogi reported that at a multi-agency meeting on 16 October 2025 the police stated that, to date, there was no evidence of psychological violence that would constitute a criminal offence. She noted that since July 2025 the mother had not permitted contact between the father and the children and that each time she failed to deliver the children in accordance with the contact order, the father filed a complaint with the police. She concluded that:

“Based on the investigation of this application and the current circumstances, it is established that the children are growing up with their mother in a stable and satisfactory environment and are receiving adequate care. Furthermore, it appears that the father shows genuine interest in his children and wishes to remain involved in their lives, spending time with them. The children have expressed positive feelings about their communication with their father and wish to have frequent contact with him. Stable contact with their father is expected to have a positive effect on their development… … it would be in the best interests of the children for communication with their father to resume and be maintained on a stable basis. …it is proposed that the parties work with specialists to help improve their communication and normalise their interpersonal relationship.”

Stable contact with their father is expected to have a positive effect on their development…

[30]The X City Council assessment concluded that there were no concerns regarding ABM’s care of the children. The (English) police report was that she was “exceptionally vulnerable.” Although ABM had reported to the police concerns that ABF had sexually harmed A and B, the children had not disclosed anything of concern. A presented as “emotionally settled” but there “is a potential risk of emotional harm arising from ongoing parental conflict and legal proceedings.” B had “limited verbal responses” which “may indicate difficulty articulating feelings about the separation.” There were no concerns from their school about attendance, behaviour, or wellbeing. “During sessions, both children spoke positively about their father … Neither child made disclosures of harm or expressed in relation to [ABF].” … At the time of this assessment there is no information from the children to suggest that they have experienced direct harm from [ABF] or that contact would present an immediate safeguarding risk. However, it is recognised that parental conflict has the potential to negatively impact the children’s emotional wellbeing. Therefore should contact occur in the future, it would be important that appropriate arrangements are in place to minimise parental conflict.” X City Council closed their case regarding the children, informing the parties of that decision on 24 March 2026.

[31]Ms Baker gave brief oral evidence to the court to supplement her written analysis and safeguarding report. The latter included reference to the father being involved in a significant police intervention several years ago, but he has vehemently denied that the report referred to him, stating that it was a matter involving his brother. Ms Baker had made further inquiries about that matter but had not had a response at the time of the hearing and has not provided the court with any response to the date of preparation of this judgment. I accept for current purposes that the report did indeed refer to ABF’s brother, not him.

[32]Ms Baker found that A engaged fully with her, but B refused to do so. He became distressed and would not leave the car. A expressed a preference for living in England but did not raise any objection to living in Cyprus. Asked how she would feel if a Judge decided she had to return to Cyprus she replied, “It would be alright.” Ms Baker did not discuss with A how she would feel if her mother did not return to Cyprus with her and B. She did not seem to Ms Baker to be aware of that possibility. It is perhaps to ABM’s credit that she had not communicated her decision not to return to A. Understandably Ms Baker did not want to raise the prospect of ABM not returning to Cyprus at the assessment if A was unaware of that possibility. A wrote a letter to the Judge saying that she thought she should “see my dad in the future if that is possible.” She described Cyprus as a wonderful place, but she did not want to go back there because there was “more to explore” in England and it is not hot.” She told me, through her letter, that she found it easier to learn at school in England than in Cyprus because Greek is her second language. A told Ms Baker that she missed her father and wanted to see him alternately with her mother:

“Maybe I see my mum for two days, my dad for two.”

[33]Ms Dekatris provided a written report, written answers to questions, and gave oral evidence. I am satisfied that she has expert knowledge of the family court system in Cyprus but, as she advised the court, the family court there is exclusively concerned with matters concerning children, whereas the civil court in Cyprus will deal with issues such as the protection of an adult from abuse by their partner. She advised that undertakings are not usually given or accepted in the family court in Cyprus but that the parties can agree to conduct themselves in certain ways and ask the court to record these as what are termed “rules of court”. The court would treat a breach of rules of court as a breach of contract rather than a breach of a court order, and could impose a financial penalty, for example. Hence, it would be possible, by consent, for the parties to draw up some of the protective measures or undertakings offered by ABF in the present case as agreements, and to invite the Cypriot court to record those as rules of court. Alternatively, the Cypriot family court could be invited to make orders reflecting those measures or undertakings. However, as I understood her evidence, the family court might not accept that those proposed rules of court or orders flowed from the initiating applications before the court. If they did not, then the court would not enter the rules of court or make the orders. Accordingly, on my understanding, the Cypriot family court would not make an order or permit a rule of court that the father was barred from pursuing any criminal or civil proceedings in Cyprus. There would be a risk that other orders designed to protect the children would not be deemed to be applicable within the context of the ongoing Cypriot proceedings. Further, as already noted, measures designed to protect ABM rather than the children, for example an order or agreement that the father would not harass or molest the mother, would not be matters for the family court in Cyprus. Protective measures aimed at protecting ABM might be matters for the civil or criminal courts, but Ms Dekatris did not purport to have expertise in relation to those jurisdictions.

[34]As for the English Order, Ms Dekatris advised that “undertakings made to the English Court would not be capable of recognition and enforcement in the relevant Family Court in Cyprus unless these were encapsulated in an English Court order which was then registered with the Cypriot Family Court.” The issuing of mirror orders in Cyprus is not common practice “and in general is not something that is often applied or even recognised.” However, an English Court judgment is “expected to be recognised and enforced in Cyprus on the basis of its national legislation”. I understood that recognition of an order would be effective immediately but that if an application for a relevant order in Cyprus or rule of court (made in the context of the main application in the family court) were contested then it might take six to twelve months for the process to be concluded.

[35]In short, only an order made by the English Court, not any undertakings, would readily and speedily be enforceable in Cyprus.

[36]Dr Ratnam provided the court with a written report and gave oral evidence. She impressed me as a measured and insightful expert witness who gave careful consideration to her answers in court. She explained that ABM had symptoms consistent with a diagnosis of post-traumatic stress disorder (PTSD) but that unless she had in fact experienced the trauma she alleges, then Dr Ratnam could not make that diagnosis. She advised that if the mother’s allegations were accepted then she has suffered and is suffering from PTSD. Dr Ratnam would not categorise PTSD by reference to severity, indicating that it would be inconsistent with the ICD scheme to do so. She told me that ABM had been very tearful during the assessment. Alongside PTSD (provisional on findings that the trauma had been experienced) Dr Ratnam diagnosed depression and anxiety and recommended anti-depressant medication. ABM had said that she wanted to complete her ongoing courses of therapy before considering medication but in oral evidence Dr Ratnam reiterated that there was no reason that medication and therapy could not be provided alongside each other. ABM’s symptoms of anxiety include tightness of the chest, palpitations, nausea, excess saliva production, and panic attacks. Symptoms of her depression include low mood, altered appetite, reduced sleep, reduced energy, reduced enjoyment, and hopelessness.

[37]Dr Ratnam noted that ABM had shown resilience and had maintained her ability to function and to provide care for the children notwithstanding her mental ill health. PTSD can cause emotional dysregulation and there is evidence of that, in particular in the report of Ms Theofilidou. Exposure to such behaviour can impact on the emotional well-being of children.

[38]Dr Ratnam acknowledged that in her current circumstances in England, ABM is freed from some of the sources of her mental ill health, for example, exposure to direct conflict with ABF. However, she is engaged in litigation which can be a cause of anxiety. Contemplating the prospect of the children being returned to Cyprus by court order, and of ABM returning with them, Dr Ratnam advised that there would be a risk of deterioration in ABM’s mental health, but she did not say that the deterioration would be “significant”.

[39]In her oral evidence, Dr Ratnam advised that a planned transfer of ABM’s therapy from England to Cyprus was required. This, she suggested, ought to be in place, with handover between therapists established, before any return of the mother to Cyprus. No steps have yet been taken in that regard not least because ABM’s position is that she will not return.

Legal Framework

[40]The purpose of the Convention was summarised by Lady Hale in In Re D (a child) (Abduction: Rights of Custody)

[2006] UKHL 51

;

[2007] 1 AC 619

“48. The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their ‘home’, but also so that any dispute about where they should live in the future can be decided in the courts of their home countries, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed.”

[41]Where, as here, a left-behind parent had, and was exercising, custody rights in respect of a child and that child was wrongfully removed from, or retained away from, the country of their habitual residence, then, under the Convention, the child shall be returned (if the application is made in good time) under what is intended to be a summary procedure, unless one or more of the defences under the Convention are made out. In the present case, the respondent relies only on the defence under Art13(b): grave risk of harm or intolerability. There is no dispute about habitual residence, wrongful retention, or that, unless the Art 13(b) defence succeeds, the child should be returned to Cyprus.

[42]Art 13(b) provides:

“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.”

[43]The leading authorities on the Art 13(b) defence are the two Supreme Court decisions in Re E (Children) (Custody Appeal)

[2011] UKSC 27

;

[2012] 1 AC 144

; and Re S (A Child) (Abduction, Rights of Custody)

[2012] UKSC 10

;

[2012] 2 FLR 442

[44]In Re IG (A Child) (Child Abduction, Habitual Resident, Article 13(b))

[2021] EWCA Civ 1123

, Baker LJ confirmed that the leading authorities remain Re E and Re S and he summarised the relevant principles, at [47], as:

“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. 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 would 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 the 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 term of the consequences, including remedies for enforcement in the requesting State in the absence of compliance. 10. As has been made clear in 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.”

[45]In E v D

[2022] EWHC 1216

, MacDonald J analysed the correct legal approach to be taken when there are disputed allegations of fact relevant to the Art 13(b) assessment:

“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. The methodology articulated in Re E forms part of the court's general process of reasoning in its appraisal of the exception under Art 13(b) (see Re S (A Child)(Abduction: Rights of Custody) [2012] 2 WLR 721, and this process will include evaluation of the evidence before the court in a manner commensurate with the summary nature of the proceedings. Within this context, the assumptions made with respect to the maximum level of risk must be reasoned and reasonable assumptions based on an evaluation that includes consideration of the relevant admissible evidence that is before the court, albeit an evaluation that is undertaken in a manner consistent with the summary nature of proceedings under the 1980 Hague Convention.”

[46]As to the respondent’s assertion that she will refuse to return with the children even if a return order were made, Counsel have directed me to the judgment of Peter Jackson LJ in In re R (above):

“36. Drawing matters together, article 13(b) requires the parent opposing a child’s return to establish that there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Where that parent asserts that they will not accompany the child to return, the court will scrutinise the assertion closely, because it is an unusual one for a main carer of a young child to make. The court will therefore make a reasoned assessment of the degree of likelihood of the parent not returning. Relevant considerations will no doubt include the overall circumstances, the family history, any professional advice about the parent’s health, the reasons given for not returning, the possibility that the refusal is tactical, and the chance of the position changing after an order is made. The court will then factor its conclusion on this issue into its overall assessment of the refusing parent’s claim to have satisfied article 13(b). By this means, it will seek to ensure that the operation of the Convention is neither neutralised by tactical manoeuvring nor insufficiently responsive to genuine vulnerability. … 41. The judge’s error, relying on an agreed position of the parties, was to consider, in reliance on Re E [2012] 1AC 144, that he was bound to take at its highest the mother’s assertion that she would not return. As I have explained, that is not the correct approach. It transposes, for the first time so far as I am aware, the approach to the summary assessment of allegations of domestic abuse that was endorsed in Re E at para 36 into a different context. If the court was obliged to take that approach, there is an obvious risk that the effective operation of the Convention would be hindered. 42. Ms Kirby argued that the court should operate a rebuttable presumption that a parent will return with children, and that this should prevail unless there is cogent contrary evidence. That would be to substitute an equally unhelpful test for the one employed by the judge.”

[47]Family Procedure Rules PD 12J provides amongst its general principles:

“Domestic abuse is harmful to children and/or puts children at risk of harm, including where they are victims of domestic abuse for example by witnessing one of their parents being violent or abusive to the other parent, or living in a home in which domestic abuse is perpetrated.” “Domestic abuse” has the same meaning as in the Domestic Abuse Act 2021 which includes controlling or coercive behaviour as “abusive behaviour”

Analysis and Conclusions

[48]The primary issue for me to determine is whether, in respect of each child, on the balance of probabilities there is a grave risk that their return would expose them to physical or psychological harm or otherwise place them in an intolerable situation. Whilst I must consider each child separately it seems to me that the evidence in relation to the primary issue is effectively the same for each of them and so it is convenient to consider the evidence as a whole and then state my conclusions as they affect both A and B.

[49]A key factor is whether ABM would return to Cyprus if A and B’s return is ordered. She has steadfastly maintained in these proceedings that she would not do so. Dr Ratnam was so struck by ABM’s insistence that she could not consider any circumstances under which the children were returned, that she enquired with concern about whether ABM was implying that she would take some form of irreversible action to prevent their return. The mother’s response reassured Dr Ratnam. Nevertheless, there is no doubt that the mother has consistently expressed a very firm stance that under no circumstances will she return to Cyprus. She says that she has “agonised” over this decision. She points out that(i) she may well be arrested and the children separated from her and possibly put into care, were she to return with them;

(ii) she would have to forfeit a EUR 10,000 guarantee because she breached the order to return the children to Cyprus after a short holiday in England. She does not have the resources to pay that amount or any substantial financial penalty;

(iii) she lacks resources to find a place to live for herself and the children;

(iv) she has lost all faith in the Cypriot legal system to protect her and the children;

(v) her mental health would not survive a return: she does not believe she would be able to care for the children and “there is no-one else to look after them there”; and

(vi) she would be driven back into litigation about child arrangements with ABF and, if he were granted time with the children, with having to navigate arrangements with him which, given her experience of his abuse of her, she could not contemplate.

[50]In fact, the family justice system in Cyprus has gone to some lengths to investigate the children’s welfare including by way of psychological assessments of them, ABM and ABF, and a social worker’s assessment. The mother sees things in absolute terms. She says that there is no-one else in Cyprus to look after the children, but their father is there. Notwithstanding their mother’s implacable hostility to ABF, the children have expressed positive feelings about him and have said that they want to see him. A expressed that desire very clearly to Ms Baker. However, I have little doubt that the mother’s own perception is that the Cypriot legal system has failed to protect her and the children, that she would not receive a fair hearing there in the future, and that it would be a gross dereliction of the duty to safeguard the children, to place them in their father’s care. All professional assessments of ABM demonstrate that she is highly emotional and sometimes emotionally dysregulated, when thinking and talking about her and her children’s circumstances and the abuse she has reported.

[51]Hence, ABM’s statements that she would not return to Cyprus cannot readily be dismissed. Whilst there might be a strategic advantage to her in asserting that she would not return, because the refusal supports her case on Art 13(b), I do not believe that she is thinking strategically. I believe that she is responding emotionally to what are, for her, extremely difficult circumstances.

[52]I also take into account that in the months prior to her bringing the children to England and wrongfully retaining them here, ABM was living an itinerant life with the children in Cyprus, including resorting to living in refuge accommodation. ABF has offered that ABM and the children could live in the old family home upon their return, but ABM says that it would be triggering for her to return to the house where abuse including rape took place, and she could not do so. I accept that on her case the mother has many reasons to fear that she would have nowhere, or nowhere stable, to live with the children and very limited financial means of support.

[53]ABM has more support in England. England is the country of her birth and she lived here until 2020. She has many ties to this country and fewer ties in Cyprus. She owns property in England both in her own name and jointly with ABF. Currently she has no job here. There are no immigration issues preventing return. So, subject to her physical health, she could return to Cyprus swiftly if she chose to do so.

[54]I received evidence that ABM has embarked on an extended course of therapy. She feels she is benefiting from the therapy, and I am sure that she would be loath to break the therapeutic relationship with her English therapist. That would be an obstacle to her returning to Cyprus and might have consequences for her mental health upon return. Dr Ratnam advised that there ought to be a planned handover to a suitable therapist in Cyprus before the mother could return there.

[55]So, there are substantial reasons why the mother’s return to Cyprus would be very difficult for her. On the other hand, ABM is devoted to her children and extremely anxious to protect them. Would she really leave them on their own in Cyprus such that they may then have to live with their father, whom she accuses not only of abusing her, but abusing them? She fears for herself, but she fears for her children. It seems to me that she views ABF as something of a monster and is desperate to protect her children from him. Her presence in Cyprus would be a protective factor for her children, however much she believes her ability to protect them would be limited.

[56]Before making a finding as to whether the mother would return with the children to Cyprus, I need to consider my approach to the mother’s allegations of abuse, both of her and the children. I adopt the approach laid down in Re E. I am satisfied that I cannot confidently dismiss or disregard the mother’s allegations of abuse by ABF of her. Although ABF flatly denies the truth of any of her allegations, there is nothing inherently unreliable about them. Indeed, the CPS in England has determined that there is sufficient evidence on which to bring a prosecution of coercion and control by ABF against ABM. Even though no further action is being taken in relation to ABM’s allegations of rape, the possibility of re-instituting investigations into those allegations has been left open. Ms Perrins KC submitted that the mother’s allegations of abuse had escalated over time but my view is that those changes in the mother’s allegations that have arisen are very possibly due to her increasing insight as she continues to reflect, with difficulty due to her mental health, on her relationship with the respondent. ABF has not responded to any of the allegations with any specificity – his case is essentially that they are all concocted.

[57]My evaluation is that the allegations of abuse, including sexual abuse, made by ABM against ABF, cannot be discounted and that I must take them into account when making a reasoned and reasonable assessment of the risk to the children taken at its highest.

[58]The position in relation to ABM’s allegations of ABF’s abuse of the children is more problematic. Whilst ABM has raised allegations of sexual abuse by ABF, including with the police here and in Cyprus, her allegations, if that is how they can be described, are no more than concerns borne of her distrust of ABF. The children have not disclosed anything troubling in this regard, despite being assessed on a number of occasions. The mother reported concerns of sexual abuse of A after her own mother had seen A act in a certain way on an outing. Her concern does not seem to me to have been rational and there is very little else in the evidence I have seen to substantiate any such concern. In all the circumstances I should disregard the allegations of child sexual abuse raised by ABM against ABF when assessing risk to the children.

[59]Nevertheless, the children lived in the same household as ABM and ABF during a long period when, she alleges, ABF was abusive to her. On her case, they witnessed abuse and later became subject to controlling behaviour by ABF similar to that exerted on her over the years. The children are aware of their parent’s hostility to each other, even though they have retained positive feelings towards both of them (A has said that consistently. B did so in the past but he has not opened up more recently). I remind myself of the general principle from PD12J stated above. In my judgement, I cannot confidently discount that the children are themselves victims of domestic abuse by their father both by living in a household in which abuse and by his seeking to control them and their views of their mother. Again, I have to take that into account when assessing the maximum risk to the children.

[60]Insofar as Ms Chokowry sought to persuade the court that it is sufficient to establish the defence under Art 13(b) that serious allegations of domestic abuse have been made and cannot be discounted, I disagree. The court has to make a reasoned and reasonable assessment of the maximum level of risk to the children, based on the summary evaluation of the evidence.

[61]I am satisfied that the mother’s allegations of domestic abuse, including sexual abuse against her by the father, should be taken into account when assessing risk. I am also satisfied that the children should be treated as having been victims of that abuse, living in the same household where such abuse is alleged to have taken place, and as victims of psychological abuse through controlling behaviour of them by the father. The level of risk to them, however, depends not solely on whether such allegations are taken into account, but on the extent of the harm likely to be suffered by the children on return. In that respect, it is important to recognise that, on the mother’s allegations, ABF’s coercion and control of her continued after the relationship ended. She also describes a pattern in which she felt that she was under his spell and then began to realise the pernicious effects of his manipulation of her. She alleges that he has begun to exercise similar control and coercion over the children. The maximum risk has to be assessed in that context. This is not a case of historic physical abuse in particular circumstances: it is about a pattern of coercive and controlling abuse which has continued.

[62]On any view the children would not be living in the same household as both ABM and ABF were they to be returned to Cyprus. Hence, they would not be exposed to domestic abuse perpetrated by ABF against ABM with all four living within the household. Any previous harmful circumstances would not be replicated. However, if they lived with their father, they would be under the strong influence of a man who is an alleged perpetrator of serious abuse. Taking the risk at its highest, this could expose them to serious psychological and emotional harm caused by ABF’s coercion and control of them. Even if they only spent time with ABF, rather than living with him, the maximum level of risk would be that they would be harmed psychologically and emotionally by him. Additionally, the risk has to include the possible harm to the children caused by the impact on their mother of them living with or spending time with ABF. Taking into account the direct and indirect effects of future abuse, then if the mother stayed in England and the children lived with their father in Cyprus, the “maximum risk” would be that the mother would see very little of them, her mental health would deteriorate, and the children’s relationship with their mother could break down (of course, in England their relationship with their father has effectively broken down because of the mother’s actions in stopping contact with him). If ABM were to return with the children, then the maximum risk is similar, save that ABM would be in closer proximity to ABF and therefore at even greater risk of suffering coercion and control by him. Furthermore, if the children were living with ABM in Cyprus, they would be significantly affected by any difficulties she experienced from living there, including a potential deterioration in her mental health. The effect on the mother of the children’s return is of course tied up with the impact on her mental health, an issue to which I now turn.

[63]I have full regard to all the evidence about the mother’s mental state and in particular Dr Ratnam’s evidence as to her condition and prognosis. I do not carry out a Re E process in relation to expert evidence but rather assess the evidence on its merits and apply it to the question of the risk of harm to the children upon return. However, it seems to me that to be consistent with Re E, for the purposes of this application I ought to assume that the mother has suffered the abuse she alleges that ABF has committed against her. I have evaluated that evidence, and I cannot confidently discount it. It is ostensibly credible and it has formed the basis of an ongoing criminal prosecution in this country (albeit not in relation to allegations of rape).

[64]Dr Ratnam’s evidence, and that of other professionals who have assessed ABM and the family, is that she is in a highly emotional state. Assuming that the mother’s allegations of abuse are true, she meets the diagnostic criteria for PTSD. She suffers depression and anxiety. She is receiving therapy – Dr Ratnam recommends CBT or EMDR for her PTSD – albeit she has not sought prescribed medication for her depression and anxiety as Dr Ratnam advises. There is, I find, a risk of deterioration in her mental health if the children are returned to Cyprus. Whilst Dr Ratnam did not advise that the risk was of a serious deterioration such as would prevent ABM functioning effectively as a parent, I have to take into account all the evidence in the case including the allegations of abuse that the mother has made and her perception of her treatment within the Cypriot justice system.

[65]The mother’s mental health would, I find, deteriorate. She would be vulnerable not only because of her intense anxiety about return, but also because of the cessation of the therapeutic relationship she has established in England. She had not found a similarly beneficial one in Cyprus. Her ability to care for the children and her general functioning has, so far, not been significantly adversely affected by her mental health issues and she has shown resilience in that respect. However, I have to consider the combination of a deterioration in her mental health with other factors – personal, financial and practical.

[66]Considering ABM’s feelings towards ABF, her proximity to him in Cyprus, the impact on her of becoming involved again in litigation in Cyprus, her feeling that she would lose all control over the welfare of her children as ABF had contact with them and the Cypriot courts made orders, her lack of resources and any, or any secure, accommodation, her adamant desire to remain in England, her fears for herself and her children when in Cyprus, the likely deterioration in her mental health by being forced to return against her will, and the loss of the support she has in England, would in my judgment combine to give rise to a significant risk of a deterioration in her ability adequately to parent the children, putting the children themselves at risk of emotional and psychological harm.

[67]The extent of the risk of harm to the children if they were to return to Cyprus would depend on whether the mother decided to return with them, or later decided to return, or decided to remain in England. It is not easy to make a determination on whether or not she would return. I cannot be certain, but weighing all the evidence and the factors I have sought to analyse, my judgement is that on the balance of probabilities, if the children were returned by court order, she would return with them. Her fears for the safety of her children would overcome her fears for herself. I take into account the risk of the children being separated from the mother on or shortly after return of all three of them to Cyprus, but the mother would, I believe, take that risk rather than give in to the inevitable separation were she not to return. Whilst she doubts her ability to protect them, she would even so believe that they were better off living in the same country with her. I do not find that ABM’s current position that she would not return is tactical. Rather, I believe she would change her position when faced with the reality of their return and imminent separation from them were she to remain. Nevertheless, even if she were to decide to return with the children, she cannot do so presently because of her serious ankle injury. She may well not be able to return by flight to Cyprus until in or around September 2026.

[68]I therefore determine that, notwithstanding her current position, ABM would in fact return to Cyprus if a return order were made in respect of A and B. Nevertheless, I shall consider the risk of harm to the children whether or not their mother were to return with them.

Risk of Harm in the Event of the Mother Also Returning

[69]The situation facing the mother and children upon their return would not be auspicious. ABM has very few if any resources to allow her to look after the children effectively. There is no home for them to go to because, I find, her refusal to return to the previous family home is reasonable and credible if her allegations are true. On return she would not willingly allow the ABF to spend time with the children but ABF would not willingly agree to not spending any time with them. He might even seek a residence order in his favour. Therefore, there will be strongly contested litigation in Cyprus at which the children will be in the centre. They might well also be at the centre of litigation here if they and the mother were not to return, but it is unlikely that the father would seek a residence order with the children remaining here, and the mother’s perception is that her concerns have already been disregarded in Cyprus and will continue to be so. She has a little more confidence in the courts and authorities in this jurisdiction. Hence, family litigation in Cyprus is likely to be more fraught than family litigation here.

[70]There is a risk that the children could be removed from the mother on re-entry to Cyprus. Ms Dekatris did not discount that possibility. A written agreement with the father might prevent it from happening, but it cannot be guaranteed to do so. The mother’s EUR 10,000 guarantee would also potentially fall to be paid although Ms Dekatris advised that usually it would be for the father to apply for it to be forfeited and he may elect or undertake not to do so. In any event, the mother will not have helped her cause in Cyprus by the retention of the children in England and the manner in which she secured permission to remove them from Cyprus.

[71]I am concerned that the children would be more directly exposed to harmful parental conflict were they to return to Cyprus with both parents living in that country. The risk of harm to the children from their parents’ relations was identified many months ago in Cyprus and continues to be evident. I am concerned in particular that B is not as robust as his sister in this respect. The children were moving from house to house to refuge after their parents’ separation. Their mother’s allegations have led to their father’s arrest and prosecution in England and criminal charges in Cyprus, as well as to protracted family proceedings. As noted, future family proceedings in Cyprus would almost inevitably be highly disputed and a source of great anxiety for their mother. Their mother’s view of their father, based on her alleged experiences, is such that it is difficult to see how child arrangements in Cyprus involving regular time with the father could not lead to further significant conflict. This would not only affect A and B directly as they would be at the centre of the conflict, but also indirectly through the effects on ABM. Such conflict would be likely to be harmful to them.

[72]Were the mother to return, the children would nevertheless be likely to spend time with the father pursuant to orders of the Cypriot court. The position may ultimately be the same even if they stayed in England, but having regard to the orders already in place in Cyprus, it is likely that the court would order that they should spend time with their father twice a week. Whilst A, and possibly B, wish to spend time with their father, there is a “maximum risk”, in the light of the mother’s evidence, that they would suffer manipulation and emotional or psychological control through spending time with him.

[73]One risk that the mother raises, is that, were she to return, she might be separated from the children by the Cypriot authorities. Ms Dekatris said that she could not rule out the possibility of the mother being arrested upon return because of her breach of the order allowing her temporarily to remove the children. Furthermore, she advised that the father’s offered undertaking not to pursue any criminal or civil proceedings in respect of the mother’s wrongful retention was unenforceable in Cyprus – the courts there would not recognise such a promise. It would, I find, be traumatic and very harmful to the children to return with their mother only to witness her being arrested or to have her removed from them. There is a real risk of that occurring on return. The arrest would be a penal matter, not concerned with the best interests of the children and I believe that it is right to take that risk into account. I disregard the risk that the family court in Cyprus might take a decision to change the children’s residence from the mother to the father, or to give the father considerably greater unsupervised family time with the children. Those would be decisions which, applying the principle of comity, I must trust will be taken in the children’s best interests depending on the circumstances at the material time.

[74]Weighing all the evidence with care, I conclude that were ABM to return with the children to Cyprus, the maximum risk to each of the children would be a grave risk of harm. I presume that their mother would be their main carer upon return, at least until the Cypriot family court were to determine otherwise. The children would be in the care of a parent who was vehemently opposed to going back to Cyprus and where she would be extremely anxious for their safety and her own. They would have no secure accommodation. Their lives would be unstable. They would be embroiled in hostile litigation and their mother would have no faith in the authorities and the judicial system to protect them. Their mother’s mental health would deteriorate and the support and positive therapeutic relationship she enjoys in England would have been lost. A and B would be at risk of psychological control and coercion by their father. They would be removed from school here at which they are progressing well, and life in England which, A at least (B not engaging with Ms Baker) enjoys and wants to retain. Their mother would be returning to close proximity with her abuser (on her account). It is likely that she would have to negotiate family time arrangements with him. She would be at risk of suffering further coercion and control by him with a consequential impact on her mental health and functioning as a parent. Taking into account not only the psychiatric evidence of Dr Ratnam, but all the circumstances, I find that there would be a high risk that her ability to parent the children would be significantly reduced by reason of all these factors. Risk of Harm in the Event of the Mother Not Returning

[75]Were the mother not to return, then the children would be separated from the parent who has been their main carer. The children lived with both parents until 2024 but since then have lived with their mother and, looked at over the whole of the two year period since the separation, have not seen very much of their father at all. A certainly retains positive feelings towards him but has not said she wants to live with him in preference to living with her mother. Indeed, she has said that she would prefer to live in England - where she lives with her mother - but to see him regularly. It is troubling that B has not engaged with Ms Odze and has shown similar reticence with some other professionals. It speaks to a child who may be very troubled. However, when he has expressed a view in the past, he too has been positive about seeing his father. Nevertheless, they have not lived with him for two years and when they did it was, I assume for present purposes, in an abusive household. He has never been their sole carer for any prolonged period. Some of the factors that would give rise to a grave risk of harm to the children were their mother to live with them in Cyprus, would be removed or mitigated. But others would remain.

[76]The children would be separated from their primary carer and contact arrangements with their mother would be complex because they would be across borders. Assuming the maximum risk arising from my evaluation of the disputed allegations of abuse, there would be a significant risk of harm to the children from living in the care of their father in Cyprus. For present purposes the children must be regarded as already being victims of his abuse. As noted, the nature of the abuse alleged is that it would be likely to continue in the future. Whilst they would not experience the almost daily conflict they experienced when living with both parents, they would be vulnerable to his controlling and manipulative behaviour with, amongst other consequences, harmful impact on their attitude towards and feelings for their mother. It is noticeable that notwithstanding the mother’s considerable hostility towards ABF, the best evidence is that the children continue to have positive feelings towards him. The maximum risk is that if they were in his care in Cyprus with the mother remaining in England, they would become hostile to her (as a result of his manipulation). I emphasise that I make no finding that he would control or manipulate them in this way, but I have to assume maximum risk flowing from the summary evaluation I have made of the disputed allegations of abuse.

[77]It seems that the children have not contemplated living without their mother (see above) and so to be uprooted from England and separated from their mother, and to have to live with their father only in Cyprus would be an enormous and disturbing change for them. They would at least have stable accommodation, and ABF would have the financial means to support them, but the change would be very likely to be harmful to them, as would living under the care of someone who, I assume for present purposes, has been controlling and coercive with them and would be in the future.

[78]Whilst A has been resilient in difficult family circumstances, B is showing more signs of being adversely affected, emotionally and psychologically, by the parental conflict and its consequences. However, as best I can determine, the children wish to remain in England living with their mother but seeing their father. They do not wish to live with him in Cyprus and to see their mother only on such occasions that she can travel to Cyprus or they can travel to England. If the mother were to remain in England, leaving the children to live in Cyprus without her and in the care of ABF, then, it can be assumed, she would be very reluctant even to travel to Cyprus to see them there. Contact would be infrequent and the children would certainly see their mother far less than they do living with her in England (or would do if they lived with her in Cyprus). The children would, I find, be anxious about their mother. Her mental health would suffer due to the separation, her anxiety for the safety of the children, and her sense that ABF had yet again manipulated circumstances to exercise control over her and the children.

[79]I am satisfied that returning the children to Cyprus without their mother going with them and staying with them would give rise to a grave risk of harm to them. This would be due to the combination of separation from their main carer, being uprooted from the country where they want to remain, and being placed (as would be likely) with their father who, I assume for present purposes, has exercised coercion and control over ABM and them, the significant loss of family time with their mother, and the effect on her of the separation and return of the children.

Protective Measures

[80]Thus, whether ABM were to return to Cyprus with the children or not, there would be a grave risk that their return would expose each child to psychological harm. I am satisfied that, in either case, the circumstances would be intolerable for both A and B. I cannot differentiate between the children in this regard.

[81]I must consider the protective measures offered or which might be imposed to mitigate the risks of harm to the children upon any return. ABF has offered a list of some thirteen measures and ABM has responded to each one. Some could be subject to orders of this court by way of pre-conditions for return, such as provision of flight tickets and payment of money to ABM to support her and the children in the weeks after their return to Cyprus. Others are offered as undertakings of the kind that appear in non-molestation orders, but Ms Dekatris has warned that Cypriot family court practice does include accepting undertakings, nor do they recognise undertakings given in courts abroad. Only court orders here in England would be recognised in Cyprus. It seems to me that it would be possible for this court to make some orders as to ABF’s conduct.

[82]On my understanding, it could take some months for what are called rules of court, or for orders to be put in place in Cyprus. In the family court there, the rules of court or orders would not protect ABM, only A and B. Further, the Cypriot court would have to be satisfied that the rules of court or orders were properly made in the context of the originating applications. It would be possible, in principle, for other orders to be sought in the civil or criminal courts. So far as any civil orders are concerned, ABF might well agree to such measures as one means of securing the return of the children. However, considering the expert’s evidence as a whole, it seems to me that there is considerable uncertainty as to the implementation, timing, and enforceability of measures in the Cypriot justice system which would give effect to the undertakings offered by ABF or even his agreement to orders being made in the civil courts in Cyprus. Ms Dekatris could not offer expert evidence in relation to the civil or criminal justice systems in Cyprus and so the timing and effect of any civil orders there is uncertain. I understood her evidence in relation to the family courts to be that even if both parties agreed to certain rules of court or orders, the family court itself might refuse if the orders did not align or flow from the initial applications, and if there were issues of that kind, or disputes between the parties, then the proceedings might well take several months.

[83]I am satisfied on Ms Dekatris’s evidence, that the Cypriot justice system recognises coercion and control as a form of abuse, but it is not clear that it recognises children as victims when that abuse is directed at their mother. Nevertheless, it is not necessary for another justice system to have the same laws and rules as the English system for this court to be satisfied that it can offer protection to children at risk of abuse.

[84]ABM would have access to the Cypriot justice system upon return to Cyprus, and there are welfare and child protections services available. Considerable steps were taken to investigate the welfare of the children before ABM retained them in England. ABM may not have agreed with the decisions made by the authorities in Cyprus, but they were made after detailed investigation. Her concerns were not ignored; they were not accepted.

[85]ABF does face criminal charges of harassment and causing trauma to ABM in Cyprus. As I understand it, that alleged behaviour covered periods when the children lived with both parents. But the fact that he faced criminal charges did not prevent the family courts from granting him unsupervised family time with the children.

[86]Given the mother’s current position that she would not return, there would be no particular reason to delay implementation of a return order in relation to the children. However, I have found that on the balance of probabilities she would change her mind when faced with the reality of being separated from her children. Nevertheless, due to her ankle fracture, she may not be able to complete a journey to Cyprus until September 2026. One possibility therefore is that implementation of the return order could be delayed until that month. The difficulty is that there would only be merit in so ordering were ABM to change her stance. I have made a finding about that, but it is entirely possible that ABM will not in fact change her position in the immediate aftermath of an order for the return of the children. If she were to continue to maintain that she will remain in England, then a delay to September would not be warranted. On the other hand, if, after an order for the return of the children, ABM were to change her position and would return with them, then consideration would have to be given to delaying implementation of the return order until ABM was fit to fly. Having regard to my finding that the mother would probably decide to return with the children, it seems to me that when considering the impact on the children of their returning to Cyprus with ABM, the reality is that such a return would be unlikely to take place before September 2026. Although I have decided that there would be a grave risk of harm to A and B whether or not their mother returned with them, other things being equal it would mitigate the risk of harm if she returned with them. It would cause avoidable further disruption to the children to compel their return without her now, only for her to then arrive in Cyprus in September.

[87]Were ABM to return with the children, I am not satisfied that the husband’s offered protective measures and the protections of the state authorities and justice system in Cyprus would be sufficient to prevent the children from being at a grave risk of harm. There is a risk that ABM could be separated from the children upon return because of her previous conduct. That would not be a welfare decision but a consequence of disobedience of court orders. Ms Dekatris has advised that there is no promise that ABF can give that could avoid that risk. Assuming she were not arrested or separated from the children on return, the question of her accommodation with the children arises. Very importantly, ABM says that she could not live in the family home where she was raped. On her account, that is not an unreasonable position for her to adopt. In the light of her allegations, undetermined though they are, I find it to be credible. At the hearing, it was suggested on behalf of ABF that in the alternative he would provide funds for ABM to rent a home in Cyprus. That would remove the direct association with past trauma but would replace it with ABM being dependant for her and the children’s accommodation on funding by the man she views as her and the children’s controlling and coercive abuser. It is the psychological impact of ABF providing for ABM in Cyprus in that way that would cause rather than protect her and the children from harm. The risks to the children from continuing abusive conduct by ABF to ABM and to them, from litigation, from ABM’s closer proximity to ABF, from family time with him and the negotiation of arrangements, from ABM’s lack of faith in the justice system and the Cypriot authorities, would not be ameliorated by the suggested protective measures or by state intervention, in particular when the state intervention would be likely to encourage unsupervised time with, or even a lives-with provision, in favour of the father.

[88]In fact, taking the maximum risk on the mother’s evidence, the children are at risk of coercion and control by him even if he had supervised contact. The exercise of control and coercion is insidious. Even if this court made orders for any contact with be supervised (until any different welfare orders by the Cypriot courts), it might mitigate but would not remove the grave risk of harm to the children from the coercive and controlling conduct of the father. This court could make orders which were similar to a non-molestation order but the nature of the assumed maximum risk is of pernicious coercion and control against which the Cypriot court has not so far taken protective steps. ABF’s criminal charges are not for a pattern of abuse of that kind. The family court has granted and increased unsupervised family time notwithstanding those charges. Orders not to threaten, harass, or molest would not have a sufficient protective effect against the nature of the psychological abuse, both of ABM and the children, which is alleged.

[89]I accept that the mother could have therapy and drug treatment for her psychiatric conditions in Cyprus. Measures could be taken to ensure a good professional handover to a suitable therapist there. This would offer some protection against a significant deterioration in her mental health, but(i) she would lose her current beneficial therapeutic relationship,

(ii) no suitable therapist has yet been identified; and

(iii) there are many other factors which would exacerbate rather than mitigate the risk of significant deterioration. As noted, no protective measures can be taken in respect to many of those factors.

[90]Were ABM not to return to Cyprus, then the father’s offered protective measures would be irrelevant (that is not a criticism – they were offered as measures appropriate to her returning with the children). The state and judicial authorities would intervene in the welfare interests of the children, but they would not be able to protect the children from a grave risk of harm from separation from ABM (against their wishes) and from being placed with their father whom I presently assume has been abusive to them and their mother. It would be no answer in this case to say that if placement with ABF were to create a risk of serious harm to the children, they could be taken into state care. These children live safely and happily with a parent, and it would be obviously harmful to them to take them into state care.

[91]I am satisfied that the protective measures would be insufficient, in either scenario (ABM returning or not returning) to prevent a grave risk of harm and that the Art 13(b) defence is made out on the balance of probabilities. In those circumstances, I am not prepared to exercise a discretion to order the return of the children to Cyprus. It will be a rare case when the court finds that the Art 13(b) defence is established but nevertheless makes a return order. This is not such a case.

[92]Accordingly, the father’s application is refused. Following the circulation of this judgment in draft form, I was asked to provide certain clarifications which I have sought to address within the body of the judgment. There is alleged to have been a breach of the embargo on the parties sharing the judgment before handing down. I shall deal with that after the judgment is handed down.

[93]The issue of whether and under what conditions the children should spend time with the father is a difficult one since(i) very serious allegations of abuse have been made against him;

(ii) he strongly disputes all allegations and no findings of fact have been made;

(iii) he is on bail in this country on charges of coercion and control of ABM;

(iv) he lives in Cyprus and the children live in England. The parties will consider any further applications they may make and what directions are now required. I shall write letters to the children to explain my decision.

Cited in 1 later judgment

G (A Child) (Abduction: Article 13(b): Mental Health), Re 2026