Case No. EWFC-19

, at para 52, "'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. [Counsel] accepts that, if there is such a risk, the source of it is irrelevant: e g, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child." 16.So, firstly, would the allegations which the mother makes, if true, be sufficient to create a grave risk of such harm? The mother details her allegations most specifically in her non-molestation application made in September 2020, and whilst she presages her account by stating it may not contain all of the incidents which have occurred, with one specific exception, she does not later provide significantly greater or different detail in her subsequent 3 statements. There are no allegations in the first 6 years of their relationship, prior to her joining the father in Norway. Then: a.Over 21 and 22 July 2019, just before EM’s birth, she accuses the father of first slapping her and grabbing her neck, and then slapping her again hard across her ear. That these incidents are said to have taken place immediately before EM’ birth on 23 July undoubtedly add an additional level of concern. b.She reports continuing unspecified abuse in September 2019, including a threat that her children would be taken away if she reported him; she then adds ‘yet still I forgave him’. c.In January 2020, the mother first reports an incident of slapping, but a further serious alleged assault initially ascribed to March 2020 is also now said to have also happened later in that month. In this incident, she says that the father hit her with the blunt side of a knife, threatened to stab her, attempted to strangle her, and head-butted her nose three times. He then continued to slap, pull and hit her through the night, such that the next morning she attempted to leave, but was eventually collected back by him from the airport. d.In April 2020, she reports an incident when he hit her on the belly whilst holding her neck. e.In July 2020, she sets out 3 incidents, the last of which she says prompted her departure: i.First, a threat of assault while drunk ii.Second, a slapping, followed by the mother being dragged outside, from where Z had to let her in iii.Finally, an argument during which the father told her to leave and threatened her with the removal of EM by the Norwegian authorities. 17.Additionally, the mother makes a serious allegation of threats to kill the children, which I will deal with fully later. Clearly though, if this last allegation is true, or if the above incidents took place as the mother says and as a result there is evidence that she has suffered significant trauma, then a grave risk of harm to both mother and children would not be beyond contemplation, before any thought is given to appropriate protective steps. Even if the prospect of repetition were remote, then these allegations would fall within the ‘relatively low risk of death or really serious injury’, which the Supreme Court in Re E at [33] found ‘might properly be qualified as "grave"’. 18.In her first statement in these proceedings, the mother does not provide significantly greater detail than set out above, but does now assert that the father ‘has on numerous occasions threatened to kill me with a knife and has tried on a number of occasions to actually do so’. She accuses him of domestic abuse ‘which comprised of physical, emotional and sexual abuse’, and of his being controlling and coercive. She produces slightly different, but not more serious, accounts of some of the incidents set out in her first statement. She produces a series of short videos taken on her i-phone, which she says were restored to her by her sister after the father took her phone from her just before her departure from Norway. She says that in the videos the father ‘makes very serious threats to kill’ which she believes ‘he is more than capable of’. She says that he has also ‘threatened to kill’ her children, and says that incidents of violence perpetrated during the course of the videos ‘will be appalling for anyone to witness’ let alone the children. She also says that there are no protective measures which could be adequate for her protection. 19.I have watched the videos, and listened to the audio recordings. Those produced by the mother do involve her making reference to some of the incidents which she says took place in her first statement, which the father either denies or appears to give a different if still concerning account of. But there is nothing said or done in the videos which I can assess to equate to ‘very serious threats to kill’ the mother, or which comprise any acts of violence, let alone ones which could be described as ‘appalling for anyone to witness’. Further there is absolutely no corroboration of the mother’s allegation that he has ‘on numerous occasions threatened to kill’ her with a knife and has ‘tried on a number of occasions to actually do so’. The only incident involving a knife which she has particularised is that set out at [15(c)] above. 20.On one occasion the father is evidently drunk, and he and the mother have apparently had an argument. The conversations do exhibit a degree of give and take between the couple, with the mother answering back and cutting across the father. She has obviously chosen to make the recordings at these points. There is no obvious evidence on the tapes or in the conversations that any inappropriate behaviour by the father has had any serious tangible effect on the mother. That is not to say that it has not, nor indeed that all of the violent incidents that the mother alleges towards herself have not happened; but these recordings, shorn as they are of proper context and some very short in length, are not conclusive evidence that they have. The truth of these allegations is an issue to be determined on another day. I have to proceed on the basis that they may have happened. 21.I have mentioned the allegation that the father has threatened the lives of the children, which of course if true is extremely serious. I asked Mr Powell for the best evidence of this, given that an incident filmed in a video now relied on did not appear at all in the mother’s non-molestation statement, and only became part of her case after she introduced the videos. In that statement, the mother had said that the father told her that he would kill her before the police could reach her and that before that he would ‘kill her children in front of her’. He confirmed that the only evidence of a direct threat to the child relied on is contained in the video, which she says shows the father ‘being aggressive to EM both verbally and physically’. The video itself starts by showing EM sitting on the floor next to the father, and it then pans in on the child for the rest of its duration. The father can no longer be seen. He is speaking off camera in Kurdish. EM is only around 8 months old and looks somewhat bemused. There is no physical contact between the 2 for the duration of the video. The mother describes the father ‘talking sharply and loudly to him’ and ‘the sound of a slap’. There is no contact made with EM during the short excerpt, nor any overt physical threat. What is surprising, and of course concerning, is the translation of the Kurdish words spoken which apparently include ‘I will kill you, kill you’. But they do not appear spoken in anger or with intent, and there is no proper context provided for the situation. 22.Equally striking is the fact that the mother was throughout sitting close to the father whilst she was making the video recording, which carried on after the words were spoken. In her third statement she says that she made the video ‘so that she could have evidence’ of the father’s ‘negative behaviour’. She goes on to say that she made the videos ‘for her own protection’, and then accepts that whilst the videos do not show her intervening at any point, she says that she has done so ‘on numerous occasions’ to protect the children. But she has given no specific instances of any such intervention. Nor as I have indicated has she provided any evidence beyond her initial case to substantiate her allegation of the father’s ‘threatening to kill her with a knife on numerous occasions’. 23.I cannot find that without more the events recorded on this video have demonstrated to the required standard that the father was intending to make a serious threat of harm to EM when the video was made, nor that either EM or his mother perceived it as such. In the absence of further explanation or context, I equally do not accept that it would be a proportionate or necessary exercise to adjourn the determination of this application for expert evidence in relation to how this incident might have impacted upon EM. The mother herself does not report that he reacted negatively at the time, or indeed in any significant way not shown on the video immediately thereafter, nor did she herself think the incident sufficiently serious to mention it in September 2020 to the East London Family Court when applying for a domestic violence injunction. In one later statement she goes only as far as to say that she ‘wonders’ whether EM’ being ‘sometimes aggressive’ might be because of violence he has witnessed and suffered. The mother offers no evidence other than as described above of any such threat having been made. I therefore do not grant her Part 25 application, as I cannot find that the evidence which she asks the court to direct is necessary for me to determine her defence under Article 13(b). 24.On the first day of the hearing the mother sought permission to produce what she describes as a ‘phone diary’ which appeared to be notes made into a mobile phone in March 2020. The mother said that she had only just gained access to the document, to explain its late arrival into evidence. I admitted the document. Again, whilst it portrayed her feelings of unhappiness in the marriage at that time, and repeated the complaints made about the incidents which are complained of in her non-molestation statements as having taken place before that date, as outlined above, other general allegations which she made there were not detailed, and have not been expanded on in any of the four later statements that she had filed. These included a threat to push her from a window, and to buy a gun. 25.On the other side, the father has produced a number of photographs and short videos of his own which show normal and apparently happy family occasions, including the couple dancing together, and visiting a prospective new property with Z. Of course, those images do not establish that the father has not behaved as the mother has alleged. 26.Overall, having considered all of the evidence in front of me, there remain serious allegations of violent conduct by the father toward the mother in the marriage. And in relation to EM there is an allegation by the mother which has not been made out on the evidence available, but cannot be completely dismissed on a summary basis, given the words apparently spoken. However, I cannot find that if the mother felt able to return to Norway with EM, and presumably therefore also with Z and her new baby, and if she were to return to live in the former family home with the children, in the absence of the father, with appropriate funding provided by the father and with comprehensive protective orders in place, then in those circumstances that the situation for EM would therefore become intolerable by any measure. 27.In that context, as far as the threats to the mother herself are concerned the comprehensive injunctive protection which the mother sought and was granted by the East London Family Court, on the basis of essentially the same allegations upon which she now relies, save in respect of the alleged threat to EM in relation to whom she sought no protection, would appear to offer adequate protection for her. Its terms are as follow, and should be extended to cover the children of the family – that the father should not himself, or instruct or encourage any other to: a.Use or threaten any violence towards the mother; b.Threaten, intimidate, harass or verbally abuse the mother in any way; c.Go within 100 yards of any property at which he is aware that she is living; d.Send any threatening letters, emails texts or voicemail messages; e.Make any threatening or abusive telephone calls; f.Communicate with the mother other than through solicitors; and g.Damage or attempt to damage any of the mother’s property. 28.I will deal with the additional protective measures now proposed by Miss Renton for the father below. There is however, a significant residual problem which must be addressed, which is the mother’s professed position that even if a return order is made, she would not in any circumstances return to Norway to care for her child. Such a situation would undoubtedly not be in the best interests of EM. The mother explains it by reference to her state of mind as a result of the father’s conduct as she says it has been. 29.This complication was addressed by Moylan LJ last year in Re B (A Child) (Abduction: Article 13(B)) [2020] EWCA Civ 1057, where he said: 77.In In re S (A Child) (A Child) (Abduction: Rights of Custody)