FD25P00160 - [2025] EWHC 1176 (Fam)

Discussion and conclusions

The mother’s initial fear was that she would not be permitted to enter Italy with R, and that even if she was, her immigration status there would be precarious. The expert report demonstrates that this is not the case and that the mother will be permitted to come into Italy with R and to live there whilst making a visa application. Although it takes about a year, she will be entitled to some benefits and healthcare once the application has been made. R is an Italian citizen and so is automatically entitled to healthcare.

The mother has made allegations of domestic abuse against the father and also stated that he abuses drugs and alcohol. If the mother was to have to live with the father on her return, or R was to be placed to live with the father, then, and taking the allegations at their highest, they would be just of sufficient detail and substance to give rise to a grave risk within the meaning of Article 13b. Alternatively, if the mother and R were to return with nowhere to live and no access to funds at all until some future date when the mother might be able to get benefits, I accept that R would be placed in an intolerable situation.

However, this is not what will happen upon a return. The father has agreed that the mother and R can live in his apartment alone and undisturbed until the Italian courts can decide upon maintenance and also to provide the sum of 700 Euros a month in the meantime. It is not a lot of money, but it is sufficient for the time being. The father has agreed to apply for a hearing in the Italian courts as soon as possible and not to remove R from the care of the mother pending any decisions of the Italian courts. He will pay for the visa and for flights, plus any one-off specific costs for things that R needs.

All of these measures – be they called protective measures or provisions for a soft landing (in fact they are a combination of both) - will ensure that there is no grave risk that a return will expose R to physical or psychological harm or place him in an intolerable situation. Further, the authorities in Italy, as a signatory to the 1980 and 1996 Conventions, are able to provide any further protection to the mother and R should that be required.

The concrete situation for R upon a return to Italy will therefore be that he and his mother will have somewhere to live and enough money to get by for the time being. R will be protected by the father’s undertakings not to come to the property and not to remove him from his mother’s care without a court order or the mother’s agreement. Once the visa is applied for (which should be within just a few days of arrival), the mother will be entitled to healthcare and some benefits.

I accept that the mother does not wish to go back to Italy and that the return will not be to a town of her choosing. She may feel somewhat isolated and limited by the lack of language, family and friends. I sincerely hope that things will be better than she fears, but none of these issues, by themselves or taken together, would put R in the position of being at a grave risk either because of the unhappiness of his mother or the fact they may be somewhat isolated. These are matters of welfare to be taken into account by the Italian courts in due course.

In all the circumstances, I do not find that the defence under Article 13b is made out and I must, therefore, make an order for R’s return to Italy. Given the length of time that it would take for the Nulla Osta process to be followed (said to be three to six months) I do not accede to the mother’s application that the return should be delayed until then. This would conflict with the underlying intention of the Convention for children to be returned swiftly to the state of their habitual residence. The application for a visa can be made after the return order is effected.

I will listen to submissions as to the date of return, but in the first instance would suggest that a period of not more than two weeks would be appropriate.