FD25P00160 - [2025] EWHC 1176 (Fam)

Background

The father is an Italian national and the mother is British. They met in Italy in 2021 when the mother was living there, and commenced a relationship. R was born in 2024. The mother alleges that the relationship between the parties has been difficult for some time. In February of this year they came to this country for a holiday which was booked to last for just over a week. The mother further alleges that when they were staying at a hotel in the middle of the holiday she was led to believe that the father was trying to buy drugs. She says that, for her, that was the last straw in the relationship and she told him that she and R would not be returning to Italy.

The father therefore returned to Italy alone. Almost immediately after he returned he contacted the authorities and this application was made as soon as possible thereafter, so that this can properly be described as a ‘hot pursuit’ case.

The mother accepts that R was habitually resident in Italy on the date that she decided she did not want to return and that his retention here is in breach of the father’s rights of custody. The retention was therefore wrongful within the meaning of Article 3. She defends the application on the basis of Article 13b, namely that there is a grave risk that R’s return would expose him to physical or psychological harm, or place him in an intolerable situation.

The father does not accept that the provisions of Article 13b are met. He is prepared to give undertakings that he will permit the mother and R to occupy his home (where the family lived before February 2025) by themselves until the Italian court is able to deal with financial arrangements on a substantive, even if interim basis, to pay her 700 euros a month in maintenance (which would not include rent or utilities which he will be paying on his property anyway) to be reduced pro rata once the mother is in receipt of Italian benefits, that he will not come to the property where the mother is living or remove R from her, save for agreed or ordered contact, and that he will pay for things such as return flights etc, and also pay for the visa application that will need to be made.

The mother has sought a list of protective measures as set out in an Annexe to the position statement filed on her behalf. Most of them have been met by the father although he does not offer to provide her with independent accommodation in a different town, or to pay her the sum she seeks in interim maintenance until the Italian courts are able to deal with things.

Submissions

Following receipt of the expert report from Ms. Ceschini, Ms. Tait for the mother accepts that she will be able to enter Italy together with R, albeit she submits that this is not without complication.

The mother’s case under Article 13b is based upon what she says will be a very challenging environment for herself, and by extension, R, if a return order is made. The father’s property at which they are expected to live is 50 metres from his place of work and that of his parents. The town is small, the mother speaks very little Italian, has no friends, and will be isolated. There is very limited public transport and the mother does not drive. The mother has made allegations that the father was domestically abusive to her, becoming angry and aggressive at times, jealous and controlling. She says that he abuses alcohol and drugs. All these factors taken together will mean that, despite any undertakings, she will feel frightened, watched, and trapped.

Added to this, the amount of money the father is offering to pay to her until the Italian courts are able to intervene is insufficient. She has provided a schedule of expected outgoings and even taking into account the fact that she would not need to pay for rent or bills in the father’s house, the sum offered (which was increased to 700 Euros from 550 during the hearing) is not enough to pay for much more than food and nappies, leaving little or nothing for transport, or anything beyond the bare minimum.

Even if the factors taken individually are not sufficient to show a grave risk, Ms. Tait submits that cumulatively, they clearly do. The mother is a young single parent, with a severely limited income who will find it very difficult to live somewhere where she is socially isolated and financially dependent on a man who she says is abusive and controlling. The concrete situation for R on his return, taking into account the factors above at their highest, involves risks of homelessness and serious poverty, compounded by all the other matters.

In the event that the court determines that a return order should be made, Ms. Tait submits that the court should delay this until a Nulla Osta is obtained and a visa issued before travel to Italy. Although she accepts the expert evidence that the mother will be allowed to enter Italy with R (and that she is not an overstayer as she had previously thought), Ms. Tait argues that the alternative route, whereby the mother applies for a visa after arriving in Italy, leaves her exposed to a risk that it will be some time before she is able to access healthcare in Italy for herself, or benefits, and that there is always the prospect of the visa being refused completely.

On behalf of the father, Mr. Langford submits that the matters put forward by, and on behalf of, the mother fall a long way short of reaching the level of a grave risk for R. He submits that the immigration advice shows clearly that the mother will be able to enter Italy with R, that she will be entitled to obtain benefits and healthcare once the application for a visa has been made, and that she has not been an overstayer and therefore there is not likely to be any impediment to her getting a visa. The mother would be in a position to work whilst her visa application is being processed.

Mr. Langford points out that the mother has not sought undertakings with respect to non-molestation but the father has agreed to undertakings not to go to the mother’s property and to give her all the sets of keys he has. He says that the mother has lived in Italy for several years and so she is familiar with it and the language too. In any event, none of these issues are sufficient to amount to an Article 13b defence. The father is prepared to pay maintenance for the mother and R and to enable them to have a ‘soft landing’ in Italy.

The court should make an order for R’s swift return accordingly.