[2025] EWHC 2219 (Fam)

Fecha: 26-Ago-2025

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

92)

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 factually) I am satisfied that it is likely that M will be able to return to and remain in Australia for sufficient time whilst long-term decisions are made for A in the country of his habitual residence.

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