[2012] 1 AC 144
this court considered the situation in which the anxieties of a respondent mother about a return with the child to the state of habitual residence were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child's situation would become intolerable. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk; and will, among other things, ask itself whether they can be dispelled. But in In re E it was this court's clear view that such anxieties could in principle found the defence. Thus, at para 34, it recorded, with approval, a concession by [Counsel], that, if there was a grave risk that the child would be placed in an intolerable situation, "the source of it is irrelevant: eg, where a mother's subjective perception of events lead to a mental illness which could have intolerable consequences for the child". Furthermore, when, at para 49, the court turned its attention to the facts of that case, it said that it found "no reason to doubt that the risk to the mother's mental health, whether it be the result of objective reality or of the mother's subjective perception of reality, or a combination of the two, is very real". 78.Later, in response to Thorpe LJ's suggestion that the "crucial question" had been whether "these asserted risk, insecurities and anxieties [were] realistically and reasonably held" by the mother and his dismissal of the mother's case founded on her "clearly subjective perception of risk", Lord Wilson said: "34 In the light of these passages we must make clear the effect of what this court said in In re E
[2012] 1 AC 144 . The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother's anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned." … 103. …With respect to the judge, it appears to me that, in considering this issue, she fell into the error addressed by Lord Wilson, at [27] and [34], in In re S. As Lord Wilson said, the "critical question is what will happen if, with the mother, the child is returned". Although the reasonableness or unreasonableness of the "mother's anxieties" and/or the fact that they are not based on an objective risk may lead "a court [to] look very critically" at the case advanced by the mother, neither of these elements prevent the court from determining that "the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child". It is clear that "subjective perception" can be sufficient. … 105. …As the Supreme Court made clear in In re E, Article 13(b) is "looking to the future" so that the critical issue in the present case was the potential effect on the mother's mental health of a return to Bosnia. Applying this approach, I do not consider that, the fact that "by the time of this hearing the mother's mental health was stable", supports the judge's conclusion…, that "her case as to a fundamental change of circumstances is [not] made out". The question was, not whether the mother was stable at that time, but what would happen if she went with B to Bosnia. 30.So, I must first determine whether there is an objective risk to the mother in the event of a return being ordered. In the absence of any protective measures, then there may be such a risk as I have outlined above. However, with proper protective measures in place, then clearly that risk objectively recedes. If I determine that those measures would objectively be sufficient to provide suitable protection, then I must ‘look very critically’ at her ‘assertion of intense anxieties not based upon objective risk’ (per Lord Wilson in Re S at [27] [above]), and ask whether they can be dispelled. I quite accept that those anxieties, if they were to present in the mother upon her return to Norway, are capable of founding a defence under the article, whether or not objectively justified. 31.It must be said that such original evidence as there is contained in the videos and audio recordings produced by each party does not suggest that this mother is genuinely too afraid to engage with the father, or is frightened at all of standing up to him, even after she has made these allegations of significant domestic violence against him. The tone and inflection of her voice in her conversations with him which she has recorded give no intimation at all that she is in any way intimidated by him or in fear for her life. If anything she treats him with mild contempt. 32.Furthermore, her assertion that the videos demonstrate unequivocally the father’s threat both to her and to EM do not help her case, as whilst they demonstrate her putting some of the allegations which she relied on in September to the father before her departure to this jurisdiction, they do not show the father making threats to kill that are self-evidently serious, or perpetrating an act of violence that would be appalling for anyone to witness, as the mother suggested that they do. Indeed the fact that the alleged threat to EM is based solely upon the short video taken by her of the child sitting on the floor, and was not even remembered by her as an incident of threat until she later looked at the recording is telling. The fact that she did not mention the allegation in her initial statement, nor seek any protective orders in relation to EM in September, makes her vehement later reliance upon it far less persuasive. 33.Having found as I do that, with robust protective measures in place, any objective risk of harm to EM will be appropriately mitigated, my critical appraisal of the mother’s case as it stands does not satisfy me that, if she were in fact to return to Norway with the children, her ability to care for them would be in any way compromised. Indeed, I am quite satisfied from what I have seen and heard in the evidence, and read in the statements, that if she were to return she would cope well, particularly given the protective measures which would by then be in place. Consequently it would not be appropriate for me to decline to make a return order on that ground. 34.I accept that the mother does not wish to return, and her case is that she will not do so even if a return order is made in respect of EM. I hope that the mother does choose to return with him, and her other children, whilst the longer term future of the children is resolved by the Norwegian courts. However, in the event that she elects not to, I have not seen any evidence which persuades me that the father has made a realistic threat to harm EM. The only specific evidence on which the mother relies for this is the video clip, and I do not accept that that provides credible evidence of a real threat. This is only confirmed by the fact that as I have indicated, the mother evidently did not consider it to be so at the time, as she sat filming; such a threat evidently formed no part of her reasons for leaving Norway. I have no evidence before me which leads me to believe that the father is not perfectly capable of caring for EM, if the mother does not return with him. 35.I have considered the fact that the father appears to be under the influence of alcohol on the occasion when a number of the mother’s videos were filmed, although they all appear to have been filmed on the same night. Consequently, I cannot find that there is an established risk that this father’s drinking poses a threat if the mother chooses not to return with EM and he is returned into the care of his father. In this regard I am fortified by the protective measures which Miss Renton has offered, especially that at [h] below, which to ensure appropriate protection given the untried allegations must be offered in addition to the terms of the September injunction. 36.I remind myself that when the mother made complaint to the authorities in Norway after the incident just before EM’ birth, the police and social services were swiftly involved, the latter being notified by the former to follow up in relation to impact of the incident on Z. Z was spoken to and appropriate background checks into her ongoing welfare made, within weeks of the incident. The discontinuation of that involvement happened only after assurances from the mother that no further investigation was merited, and a follow up interview offered was not taken up. I am therefore satisfied that the Norwegian authorities will if needed offer entirely appropriate support and protection for this family upon any return. 37.These are, subject to the adjustments which I indicated to Counsel during the hearing at [c] and [j]: a.That the father will use his best endeavours to arrange a hearing before the Norwegian Family Court at which the mother may be present as soon as possible after EM’ return to Norway. b.To defray the cost of air tickets for the mother and EM, Zainab and the infant child of the parties born 3 December 2020 to Norway in the event that the mother returns with the children c.To pay £1,000 per month to the mother prior to and for such time after her return to Norway as may be required until her needs can be assessed by a court or otherwise determined or agreed, into a nominated account in her sole name. d.Not to institute or voluntarily support any proceedings, whether criminal or civil, for the mother’s punishment arising out of EM’ wrongful removal from Norway on 24th July 2020 and subsequent retention in England and Wales. e.Not to attend at the airport on the mother and EM’ arrival in Norway. f.To assist the mother in obtaining state and child benefits in Norway. g.Not to seek to separate the mother and EM, or to enforce the order for sole custody granted to him on 11th August, before the matter shall come before the S district court in Norway on proper notice to the mother h.Not to imbibe alcohol within 24 hours of being in the presence of EM or thereafter in this presence. i.To pay if required for the quarantine accommodation for the mother and her three children for a period of two weeks upon arrival in Norway. j.To make the former matrimonial home, or at her request a suitable alternative property within 10 miles of the same, available to the mother and her three children prior to and upon their arrival; and to defray the cost of utilities until her needs can be assessed by a court or otherwise determined or agreed. 38.I am quite satisfied that if the above provisions were to remain in force until the matter is restored before the Norwegian Court, together with the continuation of the terms of the injunctive order made at the East London Family Court on 28 September 2020, as set out at [27] above, that EM will be suitably provided for and protected. In this regard I also have in mind that Norway is like the United Kingdom a signatory to the 1996 Hague Convention, and as such protective measures may be directed here as a matter of urgency (Art.5 (1)), which will be recognised by the Norwegian Court (Art.23), but lapse once Norway has ‘taken the measures required by the situation’ (Art.5 (2)). I am satisfied in these circumstances that it is appropriate to make an order in all of those terms, which will be effective for the mother’s and EM’ protection until the matter is restored to the court in Norway. 39.I do not require any undertakings of the mother, or expect that the non-molestation order will be reciprocal. There is no evidence before me to justify that, despite the father’s initial request that I so order. I can only express the hope that the mother will feel able to return to Norway with EM, in respect of whom I do make a return order, for all of the reasons and on all of the terms that I have set out in this judgment. 22nd February 2021