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At [32] of MB v TB (Article 13: Alleged Risk of Oppressive Litigation) MacDonald J further stated
At [32] of MB v TB (Article 13: Alleged Risk of Oppressive Litigation) MacDonald J further stated:
The Supreme Court made clear that the approach to be adopted in respect of the harm defence is not one that demands the court engage in a fact-finding exercise to determine the veracity of the matters alleged as ground the defence under Art 13(b). Rather, the court should assume the risk of harm at its highest on the evidence available to the court and then, if that risk meets the test in Art 13(b), go on to consider whether protective measures sufficient to mitigate harm are identified. It follows that if, having considered the risk of harm at its highest on the available evidence, the court considers that it does not meet the imperatives of Art 13(b), the court is not obliged to go on to consider the question of protective measures.
MacDonald J said similarly in Uhd v McKay (Abduction: Publicity) at [68].
- Heading
- Mr. Nicholas Allen KC
- The application is brought by the child’s father (‘YM’). It is resisted by the child’s mother (‘ML’)
- F was represented by Mr. Jonathan Evans (on 1 st July 2025) and by Ms. Miriam Best (on 6 th and 7 th August 2025). M was represented by Ms. Indu Kumar (who appeared pro bono on the latter date for whi
- M states that at the end of September 2024 she realised she had to remain in England to protect herself and A from further emotional harm and that after multiple discussions with F, his actions indica
- This is disputed by F. He states inter alia he agreed to A’s enrolment in nursery purely from a child-focussed perspective
- M attended the final hearing in person. F attended via video-link from Australia
- As noted above M no longer pursues the exceptions/defences of habitual residence and/or acquiescence
- In her position statement for the hearing on 1 st July 2025 Ms. Kumar stated at paragraph 52 that “an important aspect” of M’s Article 13(b) defence was M’s immigration position in Australia. The part
- Ms. Kumar referred me to the letter of an Australian immigration lawyer, Mr. Michael Kah, dated 30 th May 2025 which it was said “ has been obtained by M to illustrate to the court the precarious posi
- Ms. Kumar then summarised Mr. Kah’s letter. Having done so she stated at paragraph 55 that “F fails to address this properly, if at all, in his evidence, It presents a huge practical hurdle in this ma
- Thereafter at paragraph 56 Ms. Kumar stated that “ The only option open to M is to enter Australia on a short term tourist visa which expires within 3 months. … The likelihood of M finding suitable em
- In his position statement for the hearing on 1 st July 2025 Mr. Evans submitted inter alia that (i) M currently has a valid immigration status in Australia and she and A can enter the country without
- Having read what was said by counsel about this issue I drew their attention to Re B (Children) (Abduction: Consent: Oral Evidence) (Art 13(b)) [2023] 1 FLR 911 and in particular the following paragra
- In his oral submissions on 1 st July 2025 Mr. Evans reemphasised M had a current visa to live and work in Australia but acknowledged this was now “liable” to cancellation as it had been granted on the
- On M’s behalf it was said that I should “place significant weight” on Mr. Kah’s letter “in the absence of other evidence” and that the issue of immigration was “intrinsic” to M’s Article 13(b) defence
- My view was that (i) F was right to say the letter from Mr. Kah was not admissible expert evidence; (ii) M ought not simply to have attached his letter to her statement; (iii) this was not solved by M
- Article 13(b) states
- 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
- Article 13(b) was also considered in Re IG ( A Child) (Child Abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123 per Baker LJ in which he summarised at [47] the relevant principles to b
- At [32] of MB v TB (Article 13: Alleged Risk of Oppressive Litigation) 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 credi
- In Re C (A Child) (Abduction: Article 13(b)) [2021] EWCA Civ 1354 Moylan LJ emphasised at [48] and [49] that the risk to the child must be a future risk. At [50] he cited from the Guide to Good Practi
- With regards to protective measures, in E v D (Return Order) MacDonald J at [32] drew the following principles from Re GP (A Child: Abduction) [2018] 1 FLR 892, Re C (Children) (Abduction: Article 13(
- Further at [33] MacDonald J stated
- In H v O; and Others (Secretary of State for the Home Department Intervening) [2025] EWHC 114 (Fam) MacDonald J at [45] summarised the principles that will guide the court’s evaluation as to whether p
- In Re T (Abduction: Protective Measures: Agreement to Return) [2024] 1 FLR 1279, Cobb J (as he then was) quoted at [49] from the President’s Practice Guidance: Case Management and Mediation of Interna
- 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
- Further, as was stated in G v D (Art 13(b): Absence of Protective Measures) per MacDonald J at [39] “it is well established that courts should accept that, unless the contrary is proved, the administr
- 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 s
- I also remind myself that as stated in Re B (Children) (Abduction: Consent: Oral Evidence) (Art 13(b)) per Moylan LJ at [70] that
- If I find Article 13(b) satisfied, I retain a residual discretion to return There are three core strands to M’s Article 13(b) defence
- M’s allegations against F are serious ones. Any and all forms of domestic abuse are pernicious and are not to be tolerated. However, notwithstanding this, I do not agree that the allegations made by M
- As the authorities make clear by its very nature Article 13(b) is of “restricted application” with a “high threshold” and the focus is on the risk to the child. In my view M’s allegations, taken at th
- Dr. Kolkiewicz assessed M to fulfil the diagnostic criteria for a Moderate Depressive Episode Without Somatic Syndrome. Her current functioning was in keeping with a Mild to Moderate Depressive Episod
- Dr. Kolkiewicz further stated that if M was to return to Australia the psychological stress “could be partially mitigated and managed” by M
- When considering the impact of a return on a respondent’s mental health, I bear in the mind the “critical question” to be considered as per Lord Wilson in Re S (A Child) (Abduction: Rights of Custody)
- In Re B (A Child) (Abduction: Article 13(b): Mental Health) [2024] EWCA Civ 1595 Moylan LJ stated
- Thereafter at [54] he reiterated that the “key question” is
- I am very mindful of all that is said in Dr. Kolkiewicz’s report and indeed in M’s two statements. I am not however satisfied that the likely effect on M’s mental health is sufficient to establish a g
- However in my view the evidence does not support a conclusion that there is a risk of such a significant deterioration in M’s mental health on a return, or of M becoming so psychologically disabled, s
- In reaching this conclusion I take into account that the psychological stress “could be partially mitigated and managed” (I accept not eliminated) if M benefits from what I have set out at paragraph 6
- I also bear in mind that Dr. Kolkiewicz observed that a return to Australia “ will place [M] at an increased risk of worsening depression including a lack of recovery, until matters relating to [A’s]
- There is also I believe one inaccuracy in Dr. Kolkiewicz’s report when she stated that M’s current immigration status “precludes her from working and living independently in Australia which would be a
- Therefore in applying the Re B (A Child), Re (Abduction: Article 13(b): Mental Health) test although there is a likelihood of the identified risk of “increased levels of anxiety and depression includi
- It is clear from a number of authorities (including Re T (Abduction: Protective Measures: Agreement to Return ) per Cobb J (as he then was) at [47]) that at final hearing the court is required to exam
- Ms. Souvlakis’ report then goes on to detail the various processes for cancellation of the visa (i) by the Department of Home Affairs before entering Australia (including cancellation without notice o
- Ms. Souvlakis also sets out the availability of visitor visas which includes the subclass 600 visa (Tourist Stream) which can be granted with an approved stay period of up to three, six or twelve mont
- In terms of access to medical services (noted by Dr. Kolkiewicz to be important to maintain stability of M’s mental health), M is “required to maintain adequate private health insurance” imposed on th
- On M’s behalf it is said that
- I cannot make findings of fact (and was not asked to do so) as to whether M will be denied entry to Australia and/or what may happen in relation to her visa prior to or after any return. I can only ma
- F however accepts that
- An assessment of likelihood after any return to Australia is more difficult as it not known when (if ever) any cancellation may be sought. However, even if this process were begun it is clear from Ms
- I asked counsel to address me on any authorities in which uncertainty as to immigration status was considered of (potential) relevance to an Article 13(b) defence and in particular whether the ability
- For completeness I was also referred by Ms. Best to Kent County Council v (1) EK (2) SK (3) MIK and (4) MAK (By Their Children's Guardian) the Secretary of State for the Home Department [2025] EWHC 45
- I remind myself in this context that the issue for the court is not whether M can return to Australia on a permanent basis – simply whether she can return whilst long-term decisions are made for A in
- In saying this I remain very conscious of what Moylan LJ stated in Re B (Children) (Abduction: Consent: Oral Evidence) (Art 13(b)) - to which I have referred above – when considering the difficulties
- In making my best assessment of likelihood on a summary basis, not finding facts, and taking into account in particular the decisions in HZ v GA and K v M (but acknowledging where they differ factuall
- In reaching this decision I have not given any weight to F’s arguments that
- Therefore even taking the various strands of M’s Article 13(b) defence cumulatively, bearing in mind that the Article has a high threshold, demonstrated by the use of the words “grave” and “intolerabl
- I make it a condition of my order that (i) F is to make payment of the bond/deposit and initial month’s rent (upto a combined figure of A$10,000) prior to M’s return to Australia so that a suitable pr
- My return order is conditional upon all the foregoing being put in place
- I am conscious of the importance of the issue as to the extent to which the Australian courts would enforce undertakings given to the English court or mirror those undertakings with orders of its own
- In my view it is appropriate for the order to be registered prior to M and A’s return to Australia so that it is recognised and enforceable to provide M with the necessary protection. This is particul
- In the event of any issues relating to M’s visa, F shall not
- This is not a straightforward issue to determine: on the one hand there is force in M’s position that she should be able to determine whether to seek to travel to Australia on the existing visa or a v
- Given my assessment as to likelihood of M’s inability to enter Australia on the existing visa to be less rather than more likely, in my view the appropriate time for the return order to take effect is
- Having found the Article 13(b) defence is not satisfied, the residual discretion to order a return (as considered in Re M (Abduction: Zimbabwe) [2008] 1 FLR 251) does not arise. If I had considered th
- Conclusions