[2025] EWHC 1344 (Fam)

although this is a summary process and I am not making findings of fact I am satisfied there is a likelihood (I use that word deliberately in light of the observation made by Peter Jackson LJ in Re R (Child Abduction: Parent’s Refusal to Accompany) at [38]) that M was a victim of domestic abuse. I am fortified in this view by the fact that (i) Dr. Pickering felt able to state at paragraph 3.1 of her report of 22^nd November 2024 that “[w]hilst I cannot comment on matters of fact, it appears that the relationship has caused [M] persistent stress, unhappiness and led to severe depression”; and (ii) Mr. Glasson KC noted at paragraph [85] of his judgment “there is a range of documentary evidence that supports [M’s] allegations of coercive and controlling behaviour as well as on occasion physical abuse. They are documented in the extracts from her diary and in the 2021 letter prepared on behalf by lawyers at the CPK centre [the Centrum Praw Kobiet (CPK) Women’s Centre in Poland which is an organisation that supports women’s rights and the prevention of violence against women]. The behaviour which she has described in her evidence would correspond with the definition in Section 1(3) of the Domestic Abuse Act 2021 and PD12J” and at paragraph [86] that “these allegations cannot be discounted as lacking validity or cogency on their face”. In my view this is sufficient for me to conclude that M is a highly vulnerable individual;

this provides context for what I consider has been an agonising and incredibly difficult decision for M not to return to Poland with the children;

whilst the decline in M’s mental health after the making of the original order may not be a fundamental change in circumstances I am satisfied that having experienced the same it is linked to M’s conclusion that she cannot cope now with idea of returning and all that entails;

although M’s case at the final hearing had been that she would return notwithstanding her mental health, it is of note thatDr. Pickering noted in her first report of 22^nd November 2024 at paragraph 2.67 that M had told that “if she had to return to Poland she would not manage. She said she immediately thinks about being homeless in Poland. She said if she returned, she would be isolated and said she has no friends or family there. [M] said she feels [F] would take over and said she cannot speak Polish and would not be able to do basic things for herself. [M] referred to difficulty accessing schools and doctors by herself.” This paragraph (which is also one that Mr. Glasson KC cited at paragraph [42] of his judgment) suggests to me that (from her perspective) the prospective difficulties of a return were something M was conscious of even if at that time she remained committed to doing so. This therefore militates against this being a “simple” and/or tactical change of mind seeking to force a reconsideration after the return order had been made;

it is of note that Dr. Pickering recorded in her report of 22^nd November 2024 (in the fifth bullet point of her summary) that M “presented with an unusual manner and characteristics. She was somewhat uncomfortable with social interaction and she appeared withdrawn and detached. [M] presented with thought disorder with incoherence of speech, disorganised thinking, a lack of clarity, providing vague and unrelated responses, confusion in her discussion, poor recall and poverty of speech … it is likely that her thought disorder is associated with her acute level of stress and severe depression”. This provides further context for her position;

I do not consider M to be (to adopt Ms. Renton’s words) a “cunning, sophisticated litigant” who has adopted this position as a litigation tactic. In my view she can be more properly characterised as a desperate individual;

the reasons M gave to Dr. Pickering as set out at 2.3 and following of her report of 18^th March 2025 have the tenor of reasoned beliefs. In particular I was struck by the following in paragraph 2.10:

it is of note that, as Ms. Renton observed, F did not address M’s allegations as to his behaviour since the return order was made in his statement of 6^th May 2025. Professor George acknowledged that there was little more than what he described as a “broad denial” when F said at paragraph 2 that M’s allegations were “simply not true” and at paragraph 3 “I continue to deny the allegations made by [M]”. There is no more detail than this;

in her statement of 17^th April 2025 M gives examples of how F continues to behave such as his calls with the children which (she states) trigger her mental health. She states (at paragraph 13) that she is “in pieces” after his calls to the children and that if she feels like this now she is terrified of how she would feel in a situation where she does not have her family (and in particular her mother) and friends to support her. If she is in the same country as F, she stated that even if there is an order for no contact “the pressure will be unbearable. He will not leave me alone …”. F does not deny that he has pressurised M and, again, this provides a further explanation as to why M will not return; and

at paragraph 29 of their Position Statement Professor George and Mr. Bennett stated that little weight should be ascribed to M’s assertions that she would not return to Poland herself if the return order for the children remained in force as they were “made in a context where M’s approach to this litigation has been both opportunistic and tactical”. Six reasons were given in support of this submission:

I accept what M says in her witness statement of not being able to “survive” if she returns to Poland, having been placed in an “impossible position” and that the decision to not return is “the most difficult decision” she has ever had to make and that she never thought it would come to this point. I therefore conclude she a highly vulnerable and desperate mother who has made a heartbreaking decision, but one that is not altogether surprising given what she has experienced to date and the hopelessness that she currently feels.

In Re C (A Child) (Child Abduction: Parent’s Refusal to Return with Child) Cohen J observed (as set out at [22]) that the court must assess the mother’s evidence “and seek to determine the reality of what she will do. Will she return to France or not? The test is not what it is reasonable for her to do. Secondly, what protective measures can be put in place to ameliorate the situation? I have to look at that, not so as to determine whether objectively the mother’s expressed refusal to return to France is reasonable, but to determine what impact those measures will have on her reasoning, and whether they are likely to lead to her returning.” Framing the question in this way was said by Sir Andrew McFarlane P at [63] to be the “clear and correct setting of the question”.

M is obviously aware of the protective measures that F has proposed. She continues to express concerns in relation to them (see paragraph 111 b) below). I therefore do not consider that those measures will have any (further) impact on her reasoning and hence are unlikely to lead to her returning.

In light of my conclusion as to likelihood, F’s response is striking. He does not accept that M’s decision not to return is genuine, and says (at paragraph 7 of his statement of 6^th May 2025) it is “tactical and calculated”. This chimes with M’s evidence where she stated to Dr. Pickering (at paragraph 2.20 of her addendum report of 18^th March 2025) that “[F] has said she is using her acting skills to ‘make it about her’”. F does not deny he said these things in his statement. I therefore accept, as Ms. Renton submitted, that F’s behaviour has only compounded M’s feelings of hopelessness and anxiety and solidified her view that it is impossible for her to return.

I have also considered the Child Abduction Convention - Guide to Good Practice Part VI Article 13(1)(b) published in 2020 by the Hague Conference on Private International Law. At paragraph 72 the Guide deals with the “unequivocal refusal to return” of the abducting parent as follows:

As Sir Andrew McFarlane P observed in Re C (A Child) (Child Abduction: Parent’s Refusal to Return with Child) at [51] “[t]he Guide is an important resource and the task of a judge in these difficult and complicated cases may well be supported by reference to it” and at paragraph [72] “is cast in carefully balanced terms” which “include[s] the … note of caution that “It needs to be emphasised that, as a rule, the parent should not – through the wrongful removal or retention of the child – be allowed to create a situation that is potentially harmful to the child, and then rely on it to establish the existence of a grave risk to the child.”” I am alive to the prospect of M attempting to achieve precisely this situation but do not consider that she is seeking to do so.

In reaching this conclusion I have therefore taken into account considerations including (per Peter Jackson LJ in Re R (Child Abduction: Parent’s Refusal to Accompany) at [36]) “the overall circumstances, the family history, any professional advice about the parent's health, the reasons given for not returning, the possibility that the refusal is tactical, and the chance of the position changing after an order is made”. I acknowledge changes of mind – or at least genuine changes of mind - are rare. I am satisfied that this one of those rare occasions. M is not “seeking to take advantage of any change of circumstances such as a simple change of mind”. This is not “simple” in the sense of being tactical as F asserts. I do not consider M is (to adopt the words of Moylan LJ in Re B (A Child: Abduction: Article 13(b)) at [91]) “taking steps designed to support or create an alleged change of circumstances” or is otherwise seeking to the hold the court ‘to ransom’. M’s decision not to return is a serious one and one that has not been made lightly. It arises in the context of the likelihood of domestic abuse, M’s fragile mental health, and its decline after the return order was made. This is not an assertion by an abducting parent that she would not accompany a young child on return which could open the floodgates for such claims and undermine the entire purpose of the Convention.

In reaching this decision I specifically discount, however, Ms. Renton’s submission that people who “pretend” are more likely say that will not return from the beginning rather than first saying so after a return order has been made. It would not be appropriate for me to take into account what is in effect little more than anecdotal evidence (at best).

Having reached my conclusion as to the likelihood of M returning to Poland with the children it is common ground that this is a fundamental change of circumstances that satisfies stage (c) of the four-stage test. I therefore now go on to consider stage (d).

Article 13(b) states:

The burden of proving, on a balance of probabilities, that there is an exception lies with the party asserting it as a defence. The standard of proof is the ordinary balance of probabilities.

The Supreme Court examined the law in respect of the harm exception in Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 and Re S (A Child) (Abduction: Rights of Custody) [2012] 2 FLR 442. More recently in MB v TB (Article 13: Alleged Risk of Oppressive Litigation) [2019] 2 FLR 866 at [31] MacDonald J summarised the applicable principles derived from the authorities as follows:

At [32] MacDonald J further stated:

In Re C (Children) (Abduction: Article 13(b)) [2019] 1 FLR 1045 Moylan LJ made clear that it is not the case that the court has to accept allegations made without conducting an assessment of the credibility or substance of the allegations:

Article 13(b) was also considered inRe IG (A Child) (Child Abduction: Habitual Residence: Article 13(b))[2021] EWCA Civ 1123 per Baker LJ in which he summarised at [47] the applicable principles to be as follows:

I also remind myself that the section is referring to the harm likely to be caused to the child, not the adults. It is, however, clear from ReS (A Child)(Abduction: Rights of Custody) [2012] 2 FLR 442 at [34] that the subjective anxieties of a respondent whether reasonable or unreasonable will amount to an Article 13(b) defence if the court concludes that on return the respondent will suffer such anxieties that their effect on their mental health will create a situation that is intolerable for the child.

I am also entitled to have regard to the purpose and policy aims of the Hague Convention. In Re W (Abduction: Intolerable Situation) [2018] 2 FLR 748 Moylan LJ stated:

I shall take M’s allegations against F (and the consequent risk of harm) at their highest and thereafter if satisfied that the risk threshold is crossed go on to consider whether protective measures sufficient to mitigate the harm can be identified. Although it was made clear in Re B per Moylan LJ at [71] that it is not necessary (original emphasis)for a judge to undertake the Re E approach as a two-stage process (because the question of whether Article 13(b) has been established requires a consideration of all the relevant matters including protective measures), absent the court being able confidently to discount the possibility that the allegations give rise to an Article 13(b) risk, conflating the Re E process creates the risk that the judge will fail properly to evaluate the nature and level of the risk(s) if the allegations are true and/or will fail properly to evaluate the sufficiency and efficacy of any protective measures. In other words the judge may fall “between two stools”.

I also remind myself that as stated in Re B per Moylan LJ at [70] that:

I also bear in mind that as cited in The Mother v The Father [2023] EWHC 2617 (Fam) per Henke J at [57] (b) when summarising the father’s submissions:

If I find Article 13(b) satisfied, I retain a residual discretion to return.

When considering these children in this case I am satisfied that they would be placed at grave risk of emotional/psychological harm or otherwise placed in an intolerable situation if they do not return with M.

First, as Ms. Renton submitted, the Article 13(b) defence is assessed from the perspective of the children. If, as I must and do, I take M’s allegations of domestic abuse at their highest, the children have been subjected to domestic abuse. As Ms Veitch observed at paragraph 37 of her the Cafcass Report of 19^th November 2024 if M’s allegations are true“[T] and [H] have lived with the verbal and psychological abuse and coercive control of their mother, by their father.” They have also been witness to, and experienced to date, M’s vulnerability and her mental health difficulties, including the deterioration in December 2024. It would be fanciful to suggest that they have not been aware of M’s mental health difficulties given that she is their primary carer and they have a close and loving relationship with her. They have also not been fully shielded from the conflict. The children’s lived experience of domestic abuse is clear from the Cafcass report. This is the context with which I am concerned.

In Re A (Children) (Abduction: Article 13(b)) [2022] 1 FLR 1 Moylan LJ observed at [88] that “the effect of the separation of a child from the taking parent can establish the required grave risk”. I have already concluded that the likelihood is that M will not return. M has always been the children’s primary carer. They have been in her sole care for last nine months. They have never had more than two two nights away from M since they have been in England. Separation from M in this context would be completely different from anything they have ever experienced whether in Poland or in England. I accept that they are likely in such circumstances to be incredibly concerned as to what was happening, why M was not returning to Poland with them, and whether (and if so when) they would see F. In my view this would be sufficient to establish the required grave risk of harm. In this context it is relevant that, as fully set out in the Cafcass Report, T has aphasia (a language disorder) which causes difficulties with communication and which makes her more vulnerable.

If the children return to Poland they could not be returned to F’s care given the Cafcass recommendation that there are no spending time arrangements between the children and F until a risk assessment is undertaken by the Polish authorities to determine whether this is safe.

It is F’s case that the children could return into the care of F’s relatives who could look after them pending any social services investigation. F has suggested (in his statement of 6^th May 2025 at paragraph 10) that his sister “is able to collect the children and bring them back. I have spoken to my sister and my parents who are incredibly supportive of us and are willing to care for thechildren subject to assessments being undertaken in Poland before they return to my care”. However, I have no evidence as to the children’s relationship with F’s sister or her proposals in respect of looking after them. I have no statement from her. Ms. Renton and Ms. Halliday submitted in their Position Statement that:

I also accept that any placement of the children with a member of the paternal family would, in all likelihood, be a placement with F by the backdoor. The paternal family are not subject to orders of this court and there is no way of regulating F’s involvement with the children if such a placement is endorsed. M alleges (and I accept for these purposes) that, even during a recent call between F’s parents and the children, F took over and controlled the phone call, placing pressure on T.

The reality therefore is that the children would have to be returned into the care of Polish social services. In my view that these children would now be returned to Poland, into the care of social services the specifics of which are completely unknown to this court (identity of placement, timescales and so on), whilst the children know that their M stays behind in England in the vulnerable state that she is currently in and there is then future litigation about what happens to them, is a state of affairs that meets the Article 13(b) threshold.

I should record that in this context Professor George submitted that at this stage of my analysis that I should adjourn the proceedings in order for F to obtain further information as to the potential alternative placements for the children (including with his sister as what was asserted on M’s behalf at paragraph 105 above is not accepted by him). In relation to the potential involvement of social services he stressed that these were private law proceedings and there was therefore a limit to the information F could obtain as a private citizen and where Polish social services are not yet concerned with the children as they are not living in that country. All that is known at present is as set out in paragraph 36 of his and Mr. Bennett’s position statement namely “F’s Polish family lawyer has advised that private law proceedings could be issued two weeks prior to the children’s return, and that the court could direct the appointment of a Kurator, a court appointed social worker, to supervise contact and, in due time, to provide risk assessments re F and other aspects of the family dynamic”.

However, I agree with Ms. Renton that it has been clear that I would be tasked with stages (c) and (d) of the four-stage process as set out in Re B (A Child: Abduction: Article 13(b)) since mid-January 2025. Professor George’s position is in effect an acknowledgment that there as a lacuna in F’s own evidence. Given F stated in paragraph 10 of his statement of 6^th May 2025 that “I am also very aware of the serious consequence of the children being taken into social services if [M] maintains that she will not return to Poland” heshould have put in evidence proper placement alternatives which could have been the subject of case-management even if F thought the likelihood of M’s non-return was not genuine.

Further, these are summary proceedings that are meant to be resolved within a short time-scale. As Moylan LJ observed in Re B (A Child: Abduction: Article 13(b)) at [90] there is a need for applications under the Hague Convention 1980 to be “determined expeditiously”. As such it is preferable they be brought to a final resolution based on the evidence that I have as to placement rather than adjourned for further evidence to be obtained and thereafter relisted.

I also consider that M’s Article 13(b) defence is established on the basis that (when taken in combination):

In light of the foregoing I do not need to go on and consider Ms. Renton’s and Ms. Halliday’s further submission that if M was to return “there are real difficulties with the current protective measures package” save to observe that I would be concerned that this was tantamount to a disguised attempt to appeal against the original order.

I agree in this context with what Professor George and Mr. Bennett state at paragraph 32 of their Position Statement namely “part of M’s stated opposition to a return amounts to no more than disagreeing with Mr. Glasson’s unappealed conclusions that the extensive protective measures offered by F, would be sufficient to address the alleged risks to her and the children, assuming those risks at their highest.”. As Moylan LJ observed in Re B (A Child: Abduction: Article 13(b)) at [91] “[t]he court will clearly be astute to prevent what, in essence, are attempts to re-argue a case which has already been determined …”.

Having found Article 13(b) satisfied, in light of all that I have said above there is no basis for me to exercise my residual discretion to order a return.

I accept (as Ms. Renton and Ms. Halliday began their Position Statement and as Ms. Renton concluded her oral submissions) that as Baroness Hale stated in Re D (A Child) (Abduction: Rights of Custody) [2007] 1 FLR 961 stated at [52]:

In Re T (Abduction: Protective Measures: Agreement to Return) [2024] 1 FLR 1279 Cobb J (giving the judgment of the Court of Appeal) having referred at [76] to Re D (A Child) (Abduction: Rights of Custody) at [52] reiterated that “The 1980 Hague Convention should not itself become an instrument of harm.”

In my view this risks being one of those cases. I therefore (i) grant M’s set aside application; (ii) determine that M’s Article 13(b) defence is established and order a non-return; and (iii) refuse F’s enforcement application.

That is my judgment.