FD 24 P 00524 - [2025] EWHC 1030 (Fam)

Mr Jarman and Mr Evans sensibly withdrew M’s defence of DC’s objection to return in light of Ms Demery’s written and oral evidence about the events of 18 March 2025. It was quite clear that, whatever might be said about DC’s maturity, he does not object to return. In fact, he appears to want to return.

As to their submissions in respect of Article 13(b), that there is a grave risk that DC's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation, Mr Jarman and Mr Evans mount a very robust defence on their client’s behalf. They identify five strands to this defence:

Abuse - Mr Jarman outlines in his written opening the extremely serious allegations of abuse against F. These are of the very highest order and include physical violence and rape. They also include examples of egregious coercive and controlling behaviour. It is submitted that this is not a case in which the court can ‘confidently discount’ that the allegations are true. I accept this submission save in so far as it relates to F’s relationship with the police. I believe I can confidently discount M’s evidence about this. F’s convictions and his arrest on complaints made by M lead me to the conclusion that M’s suspicions about police corruption are misplaced.

Mental health – it was submitted to me that the likely deterioration in M’s mental health were she to return to Ireland – put by Dr Ratnam as a significant risk – would be sufficient to meet the bar. It was submitted that the harm to a child caused by suicidal ideation in that child’s primary carer would be of the highest degree. I agree. It seems to me that the significance of that harm would mean that the degree of gravity of risk needed to meet the 13(b) test would be much reduced. I was asked to consider carefully the case of Re B (supra). I have done so. I consider that my approach is entirely consistent with its ratio.

DC’s needs – it was further submitted that the effect on DC of a return to Ireland is further exacerbated by his own needs. M points to the professionals involved who have all expressed concerns for DC. I struggle with this submission. DC had access to additional help in Ireland. There was a family social worker. A court welfare officer had been appointed to report on the children’s welfare and DC had access to two one to one support staff at school. I think, on proper analysis this submission may be intertwined with the submission that it is intolerable for DC to be removed from M.

Separation from M – it was submitted that it is intolerable for DC to be removed from his mother. M points out that she has always been his primary carer. This submission seems to wander into the territory of DC’s welfare and best interests. I am being asked to make a return order. I am not deciding where DC will live in the future.

Separation from RC – it was submitted that it would be intolerable for DC to return to Ireland were that to necessitate a separation from RC. The evidence supports the submission that DC and RC have a very close bond.

Mr Jarman and Mr Evans say that I must look at these strands holistically and decide whether or not the necessary threshold is reached. They submit to me that the protective measures offered by F are not adequate. They say the defence is made out.

Ms McKenna and Ms Watts reminded me of the protective measures offered by F in his statements which included undertaking:

To these, they added an additional undertaking in closing, namely that F would go immediately to the court in Ireland and set in train the process of a welfare enquiry for the purposes of resolving the custody/relocation dispute which will fall to be determined in Ireland.

Ms McKenna submitted that, even taking the abuse allegations made by M against F at their highest, the risk of harm does not reach the bar set by Article 13(b). These allegations, if made out, would certainly in my view be taken into account in any welfare exercise. I think what is meant by this submission is that these allegations can be alleviated by the protective measures offered.

Ms McKenna appeared to be attempting to persuade that me that I should discount much of Dr Ratnam’s report because the consultation was short and by video, because M had misreported various facts and because M had failed to give her full medical records. I am not with Ms McKenna on this submission. These are summary proceedings and I consider that Dr Ratnam’s report is in those circumstances sufficiently reliable and robust.

Ms McKenna invited me to consider the case of AT v SS [2015] EWHC 2703 (Fam). I have done so. It did not particularly illuminate my path. I consider that the Supreme Court decision in Re E (supra) gives me the greatest guidance to determine this case.

As to the submissions made by M in respect of separation from RC, Ms McKenna reminded me of paragraphs 73 and 76 of the 1980 Child Abduction Convention Guide to Good Practice and the need for me to be alive to the need to avoid situations such as this emasculating the purpose of the Convention. She also reminded me that I must assume that there are adequate and effective measures of protection which exist in Ireland. Given the fact that I have seen that both parties have been protected by court orders in Ireland, that the family had the benefit of a social worker in Ireland and that DC had not one but two support workers at school, I can rest assured that such an assumption is far more than just words.