CA-2025-001128 - [2025] EWCA Civ 1119

Lord Justice Moylan:

The mother appeals from the order made on 22 April 2025 by Mr Warshaw KC, sitting as a Deputy High Court Judge, (“the judge”) on the father’s application for a summary return order under the 1980 Hague Child Abduction Convention (“the 1980 Convention”). The judge decided that the mother had not established the matters set out in Article 13(b) of the 1980 Convention and ordered the return of the parties’ child, S aged 7, to Ireland.

It was accepted that the mother had wrongfully removed S from Ireland in June 2024. The mother also made clear that she would not return to Ireland for a number of reasons including because of the effect on her mental health. The judge accepted this and had “no doubt that whatever decision I make, M will remain here with [S’s sibling”]. S has a sibling, aged 10, who is not subject to the application for legal reasons.

In opposing the father’s application, the mother relied on Article 13(b), namely that there was a grave risk that S’s return to Ireland would expose him to physical or psychological harm or otherwise place him in an intolerable situation, and on the fact that S objected to returning. In the light of the Cafcass Officer’s evidence, the latter ground was withdrawn during the hearing below.

There are four Grounds of Appeal:

The Judge was wrong to order that S be returned to Ireland, having accepted that the mother would not herself be returning, thereby placing S with his father, in circumstances where, as described by the judge, the mother had made “extremely serious allegations of abuse against” the father which were “of the very highest order”;

The Judge was wrong to rely on the oral evidence of the Cafcass Officer in concluding that a return to his father’s care would not place S at a grave risk of harm or otherwise in an intolerable situation, when the Cafcass Officer’s role in proceedings had been to report on S’s wishes and feelings in respect of a return;

The Judge was wrong to insert the test of ‘immediate harm’ into Article 13(b) which was an impermissible gloss on the wording of the Convention;

The Judge failed to consider the mother’s Article 13(b) defence holistically and cumulatively and was wrong to find that separation of S from his mother was to ‘wander into the territory of [S’s] welfare and best interests’.”

At the hearing of this appeal, Mr Jarman’s essential challenge to the judge’s decision was that he did not apply the approach set out In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 (“Re E”) both in respect of considering whether there were risks within the scope of Article 13(b) and in respect of whether there were any protective measures which might address or ameliorate those risks.

The mother is represented by Mr Jarman KC and Mr Evans. The father is represented by Ms McKenna KC and Ms Watts.

For the reasons set out below, I have concluded that the judge’s decision is materially flawed and must be set aside. I have also decided that this court is in a position to determine the application for a summary return order and that, as explained below, the father’s application should be dismissed, the mother having established that there is a grave risk that a return to Ireland would expose S to harm and/or would otherwise place him in an intolerable situation.

In my view, the application can be determined on the basis of the evidence before the judge. It is not, therefore, necessary to determine the mother’s application to admit fresh evidence, namely a report from a Child and Educational Psychologist which is dated 14 April 2025, the day before the hearing below started, although it is said that the mother did not receive it until 23 April, the day after the judge gave judgment.