FD25P00204 - [2025] EWHC 2672 (Fam)

It seems to me to be appropriate in this case to take M’s factual case as to F’s behaviour at its highest. There is at least some independent support for it in the form of police disclosure and F’s aggressive and abusive text messages. Despite F’s denials, I do not think I can confidently discount the complaints and assertions made by M and conclude that they are unfounded or exaggerated.

Those complaints and assertions are very grave. I have set them out above. They seem to me to establish, at least potentially, Article 13(b) grounds. I accept, as counsel for M said, that even a low risk of serious harm can fall within Article 13(b) as much as a grave risk of lesser harm. It is all a question of degree and balance.

However, I must also consider the impact on M of this behaviour, and the effect upon her (and by extension on A) of a return to Romania. In this context, it is in my judgment of relevance that M left Romania in August 2024 not because of F’s abusive behaviour but because he refused to reconcile with her. She explained this to me very clearly in her evidence. She says she would be happy to travel to Romania to facilitate contact which perhaps suggests that, separated from F and free of a relationship with him, she would be relatively comfortable about going to Romania. In my judgment, it is probable that upon return to a country which she knows well (but not a return to live with F), and where she has several family members, is not in and of itself likely to destabilise her gravely, provided that it is accompanied by appropriate protective measures to mitigate the risks to her. It follows that a return for F would be manageable, dependent as he is on M for his care.

There is no evidence from clinicians or experts that the state of M’s mental health, and the effect on her mental health of a return to Romania, would jeopardise her care of A either physically or emotionally. The evidence to which I have referred (including her wish in August 2024 to reconcile with F, and her willingness to travel to Romania to assist with contact) does not point in that direction. She would not be returning to a relationship with F, or to the house where she lived with F. She can go to live with family members, or in rented accommodation as she chooses.

Were A to be further exposed to the domestic abuse between M and F, he would be at risk of harm but (i) his return would be with A, and they would not go back to live with F, and (ii) there are various legal and other authorities in Romania to protect both mother and child.

There is no evidence that F would be likely to perpetrate harm directly to A. M says that she is happy for F to see A, including in Romania. Through the October 2024 texts between F and M’s father, it was envisaged that A could spend significant time with F there.

I bear in mind that my focus is on the impact to the child if a return order is made to Romania. In my judgment, the behaviour of F, which gives rise to potential risk to A if he and M are further exposed to it, can be mitigated by protective measures. Further, I am entitled to assume, and have evidence to this effect, that Romania has legislation and other available measures to protect and assist victims of domestic abuse.

If protective measures are established in a way which can be enforced in Romania, then in my judgment the risks to M of a return to Romania are sufficiently ameliorated, and the impact on A of a return would be mitigated. It would be unsettling, would require a period of adjustment and is not what M wants, but it would not be intolerable for A nor expose him to a grave risk of harm. M is already participating in proceedings which are underway and can make a relocation application. And I bear in mind the purpose of the Convention set out in Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, by Baroness Hale at para 48 that:

I conclude that, provided protective measures are in place, the Article 13(b) defence is not made out.

I will therefore make a return order within 14 days subject to the following conditions and protective measures.

My order is for a return in 14 days. The order shall include the usual provisions about release of passports at the airport.

The order shall be registered in Romania before a return. My order shall be stayed until the registration is in place.

I will not make an order for interim contact (whether direct or indirect) when A is back in Romania. That will be for the Romanian court.