[2025] EWHC 2219 (Fam)

Re W (Abduction: Intolerable Situation) [2018] 2 FLR 748 – the mother asserted that the children would be in an intolerable situation if they returned to the USA because she would be unable to accompany them by reason of her compromised immigration status. Pursuant to the order made at first instance by Gwynneth Knowles J, the children were to return with the mother if she could obtain a visa, and without the mother if she could not. The mother’s appeal was allowed to the extent of discharging the order for return in the event her visa application was refused. As separation of M and A is not sought (nor foreseen) in this case this authority – which held on appeal that for the two children, aged 5 and 3, leaving their lifelong main carer without anyone being able to tell them when they will see her again was a situation they should not be expected to tolerate – provides me with no assistance;

H v O and D, Y and B and Secretary of State for the Home Department [2025] EWHC 114 (Fam)-per MacDonald J which concerned the mother and the children’s immigration status in the Netherlands. However (as is clear from paragraph [68] of the judgment) (i) the Dutch immigration authorities had already put in place steps to revoke the mother and children’s present immigration status in the Netherlands; and (ii) were the mother to reinstate her immigration status and that of the children, the timescales for this were indeterminate and if seeking to do so by way of her own asylum permit, subject to an application to reside with close family members, the mother would have to return to the Netherlands and remain in the asylum seekers centre pending the determination. I do not consider (contrary to what Ms. Kumar submitted) that this case establishes a principle that a precarious immigration status with indeterminate timescales cannot be ameliorated by protective measures and hence such measures cannot ameliorate the grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Further, in this case no steps have been taken by the Australian authorities to date to cancel M’s permit and this is not a refugee/asylum case (which often raise very different issues to non-such cases);

HZ v GA [2024] EWHC 489 (Fam) per Mr. David Rees KC (sitting as a Deputy High Court Judge) – in considering one aspect of the mother’s Article 13 (b) defence the court was satisfied from the expert evidence of a New Zealand immigration lawyer that if a return was ordered the mother would be entitled to enter New Zealand on a tourist visa and remain there for a period of six months, with the possibility of a discretionary extension thereafter. In the judge’s view (at [30] (1)) this was “clearly sufficient time for the mother’s application before the New Zealand court to relocate to be properly considered by that court.” I agree with Ms. Best that this provides some support for the proposition that the court need only be satisfied that M can return to Australia for sufficient time for long-term decisions to be made for A in the country of his habitual residence. However, I note that in this case the New Zealand court was already seized of proceedings and by its orders to date (which require steps to be taken within 10 days of any decision of this court to order a return) it had made clear an intention to progress that application expeditiously. No doubt this was something to which the judge gave weight. It is also of note that at [30] (2) the judge did not accept the mother’s argument that a grave risk of harm or intolerability arose as a result of the fact that her application before the New Zealand court to relocate with the child to the UK may fail and that if it did she would (absent a new visa being granted) be required to leave the country without the child after six months. He considered that this was a matter for the New Zealand court to consider as part of the overall welfare assessment which it will need to perform within the relocation application and did not assist the mother in establishing a defence to a return order under Art 13(b). In this case F has made it clear that if M has to leave Australia A will do so too; and

K v M [2024] EWHC 3081 (Fam) per Ms. Naomi Davies KC (sitting as a Deputy High Court Judge) – the expert evidence was that it was highly likely that the US government would facilitate the mother’s travel to the US but there was no certainty in this regard now or in the future. The mother relied on this uncertainty as part of her Article 13(b) defence but a return order was made notwithstanding this provided she was granted entry into the USA. I accept that this is authority for the proposition that uncertainty about immigration status may not satisfy Article 13(b) if any order is made (as mine would be) on the basis that the parent and child are both granted entry and are not separated by a refusal at the point of entry.