![FD24P00857 - [2025] EWHC 835 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
Article 13 (b)
Article 13 (b)
I next turn to the mother’s Article 13 (b) defence. The mother’s case is that because of the domestic abuse and controlling behaviours of the father, she and the children would face an intolerable situation on return to Italy. There is one agreed incident of domestic abuse. I have seen the video. I am concerned at the distress shown by S. He is crying, screaming in the face of the confrontation between his parents. It seems he tries to protect his mother. I have not received enough context to this video or what began before the video recording to understand what caused him so much distress. The father is right to apologise.
The other allegations of domestic abuse are disputed. Plainly there has been domestic abuse and I am not able to discount the allegations made but nor is it possible on this summary application to determine the truth of the remaining disputed allegations. Following the established case law set out above, I proceed on assessing the risk of harm taking the allegations at their highest and proceed to consider whether protective measures can protect the children on a return to Italy.
The father offers the following protective measures:
An undertaking not to prosecute the mother;
He will not attend at the airport on the day of return;
He will pay all necessary bills at the mother’s accommodation;
He will pay the costs of the mother and children’s return flights to Italy;
He will not enter any property where the mother resides;
He will provide a non-molestation undertaking;
Not to communicate directly with the mother save for making arrangements for the children and to use Our Family Wizard;
The children’s passports will be held to the order of the court by the mother Italian lawyers to prevent any onward travel until such time as the Italian courts can make any appropriate orders. In those circumstances the father will provide 7 days notice of any application to the Italian courts. (I will require information that the mother has properly instructed Italian lawyers before the order is sealed).
The father asks me to accept I have jurisdiction pursuant to the 1996 Hague Convention to order the children to return to their home city in circumstances where the mother states she wishes to reside in the mountains if returned to Italy with her children. I am asked to use Article 11 jurisdiction. I decline to do so. The issue of where the children reside in Italy is a pressing one but it is not urgent and furthermore it cannot be said to amount to a necessary urgent protective measure needed to prevent “irreparable harm” (see paragraph 68 of the 1996 Hague Convention report of Prof Lagarde). The children have been separated from their father since early February 2025 with some contact as previously ordered by Peel J. Should the mother and father live in different locations in northern Italy the current status quo will be preserved and I expect the parties to agree contact until such time as the Italian court can determine this issue (as they did for last weekend’s contact). This does not cause irreparable harm to them.
There are also issues regarding how much financial support the father should provide the mother. This is a summary jurisdiction. I conclude the father can afford to pay £ 3000 each month until such time as the Italian courts can resolve matters or the parties agree matters. I accept the mother has access to some funds and may be able to work but that is not entirely clear. Given the father declined legal aid and given the quantum of his schedule of costs for this application I am satisfied he has access to funds to support the mother and the children for some time in Italy. The mother has identified in paragraph 5 of her second witness statement the costs of a rental in a tourist town. She need not necessarily rent there. The father says it is expensive. Nor is it necessary for her to return to the city where she previously lived. Looking at these factors £ 3000 per month is sufficient for the father to pay her until such time as the Italian courts can consider matters further. I expect him to agree this as it is within my summary assessment of his means. It is not ‘MPS’ by the backdoor but is providing for the welfare of his children in the circumstances of their return pending the Italian courts’ determination.
Having considered protective measures in this context, I am satisfied the mother can return to Italy with the children and they will not face an intolerable situation. The separate living arrangements and undertakings will protect the children from the risk of domestic abuse and the Italian authorities are capable of ensuring this. I would not order, as the father invited me to, to return the mother and children to reside at the former matrimonial home. This is because of the father’s admitted actions there, which appear to the court to amount to domestic abuse albeit he does not describe it in that way. A return to the former home would be oppressive. If the mother wishes to return to Italy and reside somewhere other than the city where they lived, I decline jurisdiction to order otherwise. However, in that context, combined with the other protective measures and with the financial support I have determined is necessary, I am satisfied the children can return without any risk of intolerability.