![FD 24 P 00524 - [2025] EWHC 1030 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
Introduction
This is an application brought pursuant to the 1980 Hague Convention for the summary return to the Republic of Ireland of DC who is 7 years old. The application has been brought by DC’s father, F. He was represented at this hearing by Ms Anna McKenna KC and Ms Andrea Watts. The respondent to the application is DC’s mother, M. She was represented by Mr Mark Jarman KC and Mr Jonathan Evans. I am very grateful to all four counsel for their very helpful oral and written submissions.
Given the nature of the defences raised by M, I did not hear any oral evidence from the parties but they had submitted written statements. I had three statements from F dated, 23 October 2024, 17 January 2025 and 11 April 2025 and I had two statements from M dated 10 January 2025 and 9 April 2025. These were accompanied by numerous exhibits. I had the benefit of a report from a very experienced CAFCASS officer, Ms Kay Demery, dated 1 April 2025, addressing DC’s wishes and feelings. Ms Demery attended court and was cross examined by Mr Jarman and Ms McKenna. In addition, I had a report dated 24 March 2025 from Dr Sumi Ratnam, a forensic psychiatrist, who assessed M’s mental health. Dr Ratnam provided additional answers to questions raised by way of clarification. These are dated 14 April 2025. Dr Ratnam gave oral evidence by video link and was cross examined by the leaders. The bundle contained additional material to which I will refer as necessary.
There is no dispute in this case that DC was wrongfully removed from Ireland, where he was habitually resident, and brought to England in late June 2024.
I remind myself that the objective of the Convention is to facilitate a swift restoration of the status quo so that any dispute about child arrangements can be resolved in the country of habitual residence. It is intended to dissuade a parent from bypassing the proper legal process by acting unilaterally on the international relocation of children. However, the signatories to the Convention recognised that in a small number of cases, there may be good reason why the status quo should not be restored and therefore provided for a number of so-called defences.
M does not want DC to return to Ireland and therefore she sought to rely on two of those defences under Article 13 of the Convention, namely, (1) there is a grave risk that RS's return would expose him to physical or psychological harm or otherwise place him
in an intolerable situation (Article 13(b)), and (2) DC objects to being returned and has obtained an age and degree of maturity at which it is appropriate to take account of his views, Article 13(2). Mr Jarman and Mr Evans sensibly withdrew M’s defence under Article 13(2) in closing submissions. Thus, the only defence I must address is under Article 13(b).
The legal principles which underpin that defence are well-established. The seminal case providing guidance on the operation of Article 13(b) is the Supreme Court decision in
Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27. The burden of proof is on the parent relying on the defence. The risk must be grave, that is the risk must have reached such a level of seriousness as to be characterised as such. Grave characterises the risk not the harm, but of course there is an interrelationship such that a low level risk of really serious harm may still be properly characterised as grave whilst the virtual certainty of tolerable harm may still not reach the necessary threshold. There is no gloss or complication to be applied to physical or psychological harm. However, intolerable is a strong adjective that in this context means a situation which this particular child in these particular circumstances should not be expected to tolerate and it includes physical or psychological abuse or neglect and exposure to the harmful effects of witnessing the physical or psychological abuse of a parent. As oral evidence is highly unusual in such cases and fact finding therefore not possible, I am also mandated to take allegations at their highest, although there may be circumstances in which I can take a view about any such allegations. Both parties in this case say that I can proceed to determine this case and reach the outcome each suggests by taking those allegations at their highest.
Even if the requirements of Article 13(b) are proved, I must carefully consider whether sufficient measures exist and/or can be put in place to ameliorate any grave risk that has been identified.
I will turn now to the facts of this case and revert to the application of the law later.