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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> FC v MS [2025] EWHC 1030 (Fam) (22 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2025/1030.html Cite as: [2025] EWHC 1030 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
sitting as a Deputy High Court Judge
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FC |
Applicant |
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- and - |
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MS |
Respondent |
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Mark Jarman KC and Jonathan Evans (instructed by MSB Solicitors) for the respondent
Hearing dates: 15 and 16 April
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Crown Copyright ©
Mr Justin Warshaw KC:
in an intolerable situation (Article 13(b)), and (2) DC objects to being returned and has obtained an age and degree of maturity at which it is appropriate to take account of his views, Article 13(2). Mr Jarman and Mr Evans sensibly withdrew M's defence under Article 13(2) in closing submissions. Thus, the only defence I must address is under Article 13(b).
Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27. The burden of proof is on the parent relying on the defence. The risk must be grave, that is the risk must have reached such a level of seriousness as to be characterised as such. Grave characterises the risk not the harm, but of course there is an interrelationship such that a low level risk of really serious harm may still be properly characterised as grave whilst the virtual certainty of tolerable harm may still not reach the necessary threshold. There is no gloss or complication to be applied to physical or psychological harm. However, intolerable is a strong adjective that in this context means a situation which this particular child in these particular circumstances should not be expected to tolerate and it includes physical or psychological abuse or neglect and exposure to the harmful effects of witnessing the physical or psychological abuse of a parent. As oral evidence is highly unusual in such cases and fact finding therefore not possible, I am also mandated to take allegations at their highest, although there may be circumstances in which I can take a view about any such allegations. Both parties in this case say that I can proceed to determine this case and reach the outcome each suggests by taking those allegations at their highest.
The background
20. On 10 April 2023, F was arrested for burgling M's home on 8 April 2023 and making threats to kill. In his police interview he admitted that he had said "that I'd love to kill her" on his arrest but he denied threatening her directly saying he did not do so "cos my kids were right there in the garden". He made a number of disparaging comments about M including saying, ' she's an absolute compulsive liar and that's why I would like to get her sectioned. She's a narcissist' and "I said to her your nothing but a junkie cunt and I am going to try to take my kids full custody". F was charged and was bailed with conditions. M alleges that F frequently broke his bail conditions and that she was told by the police that he would have to breach his bail conditions fifty times before they would take any action. F denies the breaches and explains that he was allowed to go to his sister's property, implying that the alleged breaches related to his being at and using his sister's property.
Events since the removal
The CAFCASS officer
49. If DC is returned to Ireland the Court would need to be satisfied that it is a safe return and that the identified risks to DC's emotional well-being would be recognised by the courts, the police, and children's services in that country. While I appreciate there have been no adverse findings found against F, to ensure the safety of DC should he return, I would recommend a referral through the Central Authority to the Irish Child Protection Services and for there to be a full risk and welfare assessment of DC and his father. The court may also wish to be assured that there are alternative interim care arrangements for DC pending a welfare investigation
MJKC I think has been suggested that somehow DC be transported from England to Ireland into sole care of F. You are not advocating separation of DC from M or placement with F?
KD - I am not making a recommendation. What I am saying if he were to move to F's care, there would need to be an assessment. It would be preferable if M and sister accompany him. They are his main sources of emotional security. As I said and I appreciate the courts in Ireland are seized, it would need a welfare assessment. I don't think there is anyone other than F who would be in a position to care for him in the interim. M's family have their own mental health difficulties.
Judge If DC returned to live with F and the court is investigating, would you have any concerns?
KD - I would have some concerns given the history that has been reported, although obviously there is a lot more to the situation. There doesn't appear to be any treatment, nowhere suggested DC was ill-treated by F. It seems the major issue has been the relationship between the parents and I appreciate there hasn't been a fact-finding hearing on domestic abuse that has been reported. But obviously that has an impact on children whether they are aware of it or not. It is difficult to know, I have not conducted that much of a welfare assessment. There would need to be an immediate welfare assessment of him. I don't think he would be at risk immediately if at all, but to be sure his needs are being met in that environment, that there is an assessment, as otherwise he would be living with F for the first time, without his M and with his partner who he may not be altogether familiar with. I am not saying he doesn't know her, but it would be a major change for him if M and RC do not go. I am just speculating that given how much disruption he has experienced, there could be a reaction if/when he goes to Ireland, even if it is in accordance with what he says he wants
Dr Ratnam
a. Generalised anxiety with panic disorder. Symptoms of anxiety include racing thoughts, palpitations, an upset stomach, sweating and pins and needles.
b. Recurrent depression with symptoms of low mood, reduced energy, reduced interest, reduced appetite, reduced sleep, reduced concentration and suicidal thoughts.
c. Post-traumatic stress disorder, which is related to her childhood experiences and also alleged experiences in the relationship with F. Symptoms include flashbacks, nightmares, hypervigilance and avoidance of triggers.
a. The nature and extent of this deterioration in the mother's mental health - Dr Ratnam replied that it was not possible to predict the extent of deterioration. She stated there was a risk of M's mental health deteriorating to the extent where she experiences suicidal thoughts, which she might act on but that it was not possible to quantify this risk. She further stated there was a risk of increased anxiety and exacerbation of symptoms of PTSD but the extent of this could not be predicted.
b. The impact [this deterioration] would have on her daily functioning Dr Ratnam answered that depression can impact on ability to attend to daily activities and that depression likely contributed to the hospital admission in May 2024. She also stated that anxiety and PTSD are associated with avoidance of triggers, which could lead to M avoiding leaving her home as has happened in the past.
c. The impact [this deterioration] would have upon her ability to parent DC and RC from a mental health perspective, particularly taking into account DC's additional needs Dr Ratnam said this had been answered by her in her answer to the original fourth question.
MJKC: You set out the events that are likely to happen for a deterioration, you say you cannot quantify. The nature and extent of the deterioration includes all the things at 507 - suicidal thoughts, increased depression, anxiety, concerns about her PTSD and presents a significant risk to a deterioration to her mental health if she returned to Ireland
Dr Ratnam: That is correct
Information about RS
It has been a pleasure to teach DC this year. He is a kind and caring little boy with such an infectious smile. He has definitely put a smile on my face this year with his witty sense of humour. DC has made fantastic progress both socially and academically and he should be very proud of himself! I wish him all the best in Senior Infants.
While DC has made progress in many ways throughout the year he is still struggling socially and emotionally
DC shows great imagination. DC has made good progress in many areas. Keep up the good work. It has been a pleasure to teach DC this year.
M's return
The parties' positions and submissions
a. Abuse perpetrated by F towards M;
b. The deleterious impact on M's mental health of a return to Ireland;
c. The intolerability of a return for DC given his particular needs;
d. The intolerability of DC being separated from M; and
e. The intolerability of DC being separated from RC.
a. To fund return fares for DC (and RC if she were to return);
b. To provide accommodation for DC (and RC) in his home or, if M returns he points out that she can live with the children temporarily with one of her sisters;
c. Not to molest M;
d. Not to pursue civil or criminal proceedings against M for abduction; and
e. To arrange regular video contact.
My decision
Practical arrangements