Case No. EWFC-19

1.This application concerns EM, a boy born on the [a date in] 2019 (aged nearly 19 months). His father is of Kurdish heritage but has Norwegian citizenship. The father is resident in Norway and has been living there for 20 years. He works as a catering manager in the offshore oil industry. His job requires him to spend every other month at sea. EM ’ mother is the Respondent LB , who was born in , Morocco but has lived in the UK since 2010. She has an older daughter, Z aged 9 years, from another relationship and a second son born in the UK in [a date in] 2020, now aged 2 months. Although he is the father’s child, he is not the subject of this application, given the country of his birth. 2.The parents began their relationship in 2013. Whilst they are not legally married, the mother says that they went through an Islamic marriage ceremony in November 2017. She moved to Norway to live with the father in February 2019 when pregnant with EMs. She brought Z with her. The parties cohabited in Norway from March 2019. 3.EM was born in Norway and had always lived in Norway until the mother brought him to the UK on 25 July 2020. His habitual residence is therefore acknowledged to have been Norway at the time of his removal to this country. The mother was pregnant, expecting the parties’ second child, when she came to the UK. The mother alleges serious domestic abuse of her and the children by the father, and says that as a consequence of that she left Norway with EM and Z to return to the UK. She accepts that she initially told the father that she was visiting Oslo on 24 July, together with the children, but then recounts an incident at a bus stop as she was leaving when she says that she told him she would be going to the UK. The father does not accept that this happened. The following day, on 25 July, the father called her mobile phone and he reached an English language voicemail. He says that he has not been able to contact the mother or the children directly since. 4.The father commenced court proceedings in Norway in the S District Court, and the court’s ruling dated 11 August 2020 grants sole parental responsibility on an interim basis to him. He says that this order was obtained at a time when he was not aware of the mother’s address and so she could not be sent notice of the hearing. The order is expressed to lapse if no action is brought by 11 February 2021, so it may no longer still be in force. He also made this application pursuant to the 1980 Hague Convention which was issued on 17 September 2020, and which was heard by Mr Alex Verdan QC on 18 September without notice to the mother; location and disclosure orders were then made. 5.Meanwhile, the mother obtained a non-molestation order without notice in the East London Family Court. These proceedings have been stayed pending the outcome of these proceedings under the 1980 Hague Convention, although the injunctive orders there made against the father remain in force. 6.The mother opposes the return of EM to Norway. Further, she states that if a return order is made, she would not return with him, such is her state of fear for her own life if she is left at risk of assault from the father. She relies on Article 13(b) of the 1980 Hague Convention. In relation to the operation of that defence, the Supreme Court in Re E (Children) [2011] UKSC 27, provided the following overview: 29.Article 12 of the Hague Convention requires a requested state to return a child forthwith to her country of habitual residence if she has been wrongfully removed in breach of rights of custody. There is an exception for children who have been settled in the requested state for 12 months or more. Article 13 provides three further exceptions. We are concerned with the second: ". . . 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 - (a) . . . ; or (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. . . ." (emphasis supplied) 30.As was pointed out in a unanimous House of Lords decision in Re D, para 51, and quoted by Thorpe LJ in this case: "It is obvious, …that these limitations on the duty to return must be restrictively applied if the object of the Convention is not to be defeated: …The authorities of the requested state are not to conduct their own investigation and evaluation of what will be best for the child. There is a particular risk that an expansive application of article 13b, which focuses on the situation of the child, could lead to this result. Nevertheless, there must be circumstances in which a summary return would be so inimical to the interests of the particular child that it would also be contrary to the object of the Convention to require it. A restrictive application of article 13 does not mean that it should never be applied at all." 7.The father’s application came before Mr Richard Harrison QC on 9 October 2020 when directions for this hearing were given. The mother also accepted that EM was habitually resident in Norway on 25 July 2020 and that his removal was wrongful under Article 3 of the 1980 Convention. She confirmed that she was relying on the Article 13(b) exception. Next, on 8 January 2021, the matter came before a Deputy High Court judge , when further directions were given including a refusal of the mother’s application for the appointment of an expert psychologist under FPR 2010 Part 25, to report on whether EM would be likely to have suffered psychological harm from the behaviour shown by the father in a video taken on her phone, and on which she continues to rely. I am told that the Judge o indicated to the mother that she could renew her application if she thought it appropriate before me, as she has done. 8.The mother’s case is that she has a right to a fair trial which includes the right to bring evidence to support her case. Mr Powell on her behalf further insists that, if the court has any doubt that the video supports the mother’s case, then it is ‘necessary to grant’ her application to admit the expert evidence that she seeks, and that to do otherwise would ‘deny her right to a fair trial’. She says that there are no measures which would protect this child in the case of his father. 9.I have heard this application over 2 days. I have heard submissions from experienced counsel for both parents, considered several statements from each of them, and also viewed, watched and listened to a series of videos and photographs submitted by each of them, along with 3 audio recordings lasting for over 50 minutes relied on by the mother. At the outset of the hearing, Mr Powell made 2 applications; the first was to renew his application for the appointment of a Part 25 expert as explained above, which in the event he then asked to adjourn for me to determine whether I considered such an appointment necessary as a part of my substantive consideration after the close of submissions. Secondly, he sought to call oral evidence from his client, which he urged that I should hear in person. 10.As for the reception of oral evidence, this will happen only very exceptionally in summary hearings such as these. As the Supreme Court confirmed in Re E at [32]: ‘… it is clear that the burden of proof lies with the "person… [who] opposes the child's return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13b and so neither those allegations nor their rebuttal are usually tested in cross-examination.” 11.In this case, the mother is making serious allegations of domestic abuse against the father, both upon herself and upon EM. She has set those out in a number of statements, and I have watched the video evidence and listened to the recorded conversations which she says bolster her case. Her allegations are in large part denied by the father, although he does admit in the recorded conversations to what appears at least to have been a measure of inappropriate restraint. I will deal with their content in more detail below. 12.However, for the purposes of this hearing I am clear that I am not required to hear live evidence from the parties in order to properly determine the applicability of the Art. 13 (b) defence in this case. This is in part because of the summary nature of this process, and in part because even if the allegations made by the mother are true, as they may be, the question of whether a return order should be made will be critically affected by the determination of whether sufficient protective measures can be put in place in the event of a return, to avoid for EM the intolerable situation contemplated by the Article. I have to determine on a summary basis whether a return order would create a grave risk of ‘physical or psychological harm or otherwise place the child in an intolerable situation’. Only in the event that I am unable to determine that appropriate protective measures are available if in fact the allegations prove to be true, should a more detailed evaluation of their truth be required. 13.As the Supreme Court in Re E explained: 35.…article 13(b) is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home… if the risk is serious enough to fall within article 13(b) the court is not only concerned with the child's immediate future, because the need for effective protection may persist. 36.14.So, on the basis of the evidence before me, how should the test be applied? Again in Re E, the Supreme Court confirmed at [31] ‘…that there is no need for the article to be "narrowly construed". By its very terms, it is of restricted application. The words of article 13 are quite plain and need no further elaboration or "gloss".’ 15.The Court then went on to assess the import of those words as follows: ‘33. … the risk to the child must be "grave". It is not enough, as it is in other contexts such as asylum, that the risk be "real". It must have reached such a level of seriousness as to be characterised as "grave". Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm. 34. …the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" (emphasis supplied). As was said in In re D