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England and Wales High Court (Family Division) Decisions
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Cite as:  EWHC 2610 (Fam)
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IN THE MATTER OF A and B (Children) born 25 June 2020
AND IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
AND IN THE MATTER OF THE SENIOR COURTS ACT 1981
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
|- and -
Mr Paul Hepher (instructed by Messrs Footley LLP) for the Mother-Respondent
Miss Katy Chokowy (instructed by Messrs Goodman Ray) for the Non-subject child, N
Hearing date: 14 October 2022
Crown Copyright ©
This judgment was handed down in private on 17 October 2022. It consists of 86 paragraphs and has been signed and dated by the judge. The judge gives leave for it to be reported in this anonymised form as ADK v ASI.
Deputy High Court Judge Richard Todd KC:
"It was permissible and lawful to conduct remote hearings through VCF [remote video hearings]…there was no specific provision restricting the mode of receiving submissions and evidence of the parties. A judge could determine the mode of the hearing as a matter of case management. Subject to the requirements for fairness and openness, physical presence of the parties or their counsel in a courtroom for civil business was not indispensable. A VCF hearing would give parties through their counsel opportunity to address the Court as effectively as an ordinary hearing at which all the parties and lawyers were present in the same physical location…the court could readily and effectively control the conduct of a hearing and there was no risk of disruption occasioned by outside parties."
28 August 2020 Restraining order made in favour of mother
5 November 2020. Restraining order discharged.
23 April 2021 Decision of Vidzeme District Court - restraining order was made in favour of mother.
9 September 2021 Decision of Vidzeme District Court determining the place of residence with mother and parents' joint custody over children.
1 October 2021 Vidzeme District Court decided to determine the place of the residence of the children with the mother at the declared address in Valmiera, Latvia. Restraining order made on 23 April was discharged.
November 2021 Mother removed children from Latvia, without father's knowledge or consent. It is the mother's position that she did not require the father's consent for removal for up to 3 months under Latvian Law. This is disputed by the father.
23 December 2021 Latvian Civil Court made an order preventing the children from being removed from Latvia. Children had already been removed and mother was not aware of this order. The father's position is that the mother was aware of the above order. The Applicant subsequently withdrew his request.
2 to 3 January 2022 Mother and children returned to Latvia.
22 March 2022 Order of Valmiera Municipality Koceni proving for sole custody for mother and rights of access to father once a fortnight, no overnights.
7 June 2022 Final Judgment in Civil Court of Vidzeme Regional Court overturning decision re sole custody.
8 June 2022 Father found out that children and mother left to go to England.
8 June 2022 Father submitted his application to Latvian Central Authority.
22 June 2022 Final Judgment in Civil Court of Vidzeme Regional Court setting out arrangements for contact between the Applicant and children.
6 July 2022 Father's solicitors issued C67, C1A.
i. She says that on discovering the mother was pregnant (with the twins), the father insisted that she terminate the pregnancy, proposing that he inject her with steroids. She refused. The Father says this is a pure fiction and that he and his family were pleased with the pregnancy and rejects the allegation of
ii. She says she suffered daily (a) emotional abuse, (b) weekly sexual, (c) weekly physical abuse, and (d) monthly financial abuse. She says the father would call her names such as "a bitch," "a slut," and described her as ugly.
iii. The mother says that the father threatened to kill her and bury her in the forest.
iv. He told the mother the police would not help her.
v. He forced her to engage in oral sex with him.
vi. He refused to buy food on occasion and punished the family, turning off the water and electricity and keeping N's lap top from him.
vii. Around April 2020, the mother then 5 months pregnant, he tried to strangle her: she blacked out.
viii. In another incident the same month he pushed her from the bed onto her belly. He held her mouth open and dripped blood in. He said, "this is what you deserve bitch."
ix. He has kicked and pulled her by the hair and slapped her across the face until she has lost consciousness. He has pushed her head to the floor. He has beaten her on the floor next to the room where the children were sleeping.
x. In May/June 2020 the father smashed a cup at the mother's feet, cutting her toes.
xi. He would rub her nose hard and raw and spit in her face and mouth.
The impact on the mother
Allegations by the Mother in respect of the Latvian authorities
Proceedings in Latvia
Move to England
i. Does an issue estoppel arise in respect of the Latvian proceedings to which the Mother willingly submitted? If so to what findings does this apply? In this regard I note that the Court of Appeal delivered their Judgment on the 7 June and within a matter of hours of that decision the Mother had unlawfully removed the twins to England.
ii. Next, is the Art 13 (b) defence made out. I will deal with the decisions of the Latvian courts and the extent to which they constitute an issue estoppel under the section marked "the Law."
iii. Are there protective measures which can be put in place to ameliorate the risks to the children (whether directly or indirectly through the impact on the mother).?
Before I deal with each of these, it might be helpful to set out here a summary of the law.
The removal or the retention of a child is to be considered wrongful where -
a. It is in breach of rights of custody attributed to a person …. under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b. At the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
i. "rights of custody shall include rights relating to the care of the person of the child, and, in particular, the right to determine the child's place of residence;
ii. 'rights of access" shall include the right to take a child form a limited period of time to a place other than the child's habitual residence.
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a 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.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
Article 13(b) defence - legal framework
i. Article 13(b) contains three different types of risk:
a. A grave risk that the return would expose the child to physical harm;
b. A grave risk that the return would expose the child to psychological harm; or
c. A grave risk that the return would otherwise place the child in an intolerable situation.
ii. The three different types of risk set out above can be raised independently, or employed together; in this case I will consider them together for what Moylan LJ has described as a holistic approach.
iii. Article 13(b) does not require that the child be the direct or primary victim of harm if there is sufficient evidence that, because of a risk of harm directed to a taking parent, there is a grave risk to the child;
iv. The term 'grave' qualifies the risk and not the harm to the child. The risk must be real and reach such a level of seriousness to be characterised as grave;
v. The level of harm must be such as to amount to an "intolerable situation", which is a situation that an individual child should not be expected to tolerate. In Re D (Abduction: Rights of Custody)  UKHL 51, Baroness Hale held that the word, 'intolerable' used in this context, must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate";
vi. The Article 13(b) defence focuses upon the circumstances of the child upon return. It should not, therefore, be confined to an analysis of the circumstances that existed prior to or at the time of the removal or retention, but instead requires consideration of the circumstances as they would be if the child were to be returned forthwith;
vii. The forward-looking nature of the exception does not, however, mean that past behaviour and incidents cannot be relevant to the assessment of a grave risk upon return – for example, past incidents of domestic or family violence may, depending on the particular circumstances, be probative on the issue of whether such a grave risk exists;
viii. All assertions of risk are to be evaluated on the same standard or threshold and step-by-step analysis. As a first step, the court should consider whether the assertions are of such a nature and of sufficient detail and substance, that they could constitute a grave risk;
84. It also hardly needs restating that, as set out in Re E at  and repeated In re S (A Child) (Abduction: Rights of Custody)  2 AC 257 at , the terms of Article 13(b) are "by their very nature restricted in their scope". It has a high threshold demonstrated by the use of the words "grave" and "intolerable".
85. The focus of Article 13(b) is, of course, on the child. The issue is the risk to the child in the event of his or her return. In Re S Lord Wilson emphasised, at , that "it matters not whether the mother's anxieties will be reasonable or unreasonable". In the context of that case, which was addressing the consequences on the mother's mental health of returning, the "critical question is what will happen if, with the mother, the child is returned". He then said:
"If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother's anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned."
86. The focus on the child's position was also emphasised by Baroness Hale in Re D (A Child) (Abduction: Rights of Custody)  1 AC 619, at :
"On this case, it is argued that the delay has been such that the return of this child to Romania would place him in an intolerable situation. "Intolerable" is a strong word, but when applied to a child must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate". It is, as article 13(b) makes clear, the return to the requesting state, rather than the enforced removal from the requested state, which must have this effect. Thus, the English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting state to protect him once he is there. In many cases this will be sufficient. But once again, the fact that this will usually be sufficient to avoid the risk does not mean that it will invariably be so. In Hague Convention cases within the European Union, article 11.4 of the Brussels II Revised Regulation (Council Regulation (EC) No 2201/2003) expressly provides that a court cannot refuse to return a child on the basis of article 13(b) "if it is established that adequate arrangements have been made to secure the protection of the child after his or her return". Thus, it has to be shown that those arrangements will be effective to secure the protection of the child. With the best will in the world, this will not always be the case. No one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm."
87. It is well-established that both physical and emotional abuse can establish the existence of a grave risk within Article 13(b). This applies both when the abusive behaviour has been directed against the child and when it has been directed against the taking parent. As was said in Re E, at :
"As was said in In re D  1 AC 619, para 52, "'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent."
88. It is also clear that the effect of the separation of a child from the taking parent can establish the required grave risk. This situation is one of those listed as potentially falling within the scope of this provision, at , in the Guide to Good Practice under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part VI Article 13(1)(b) published in 2020 by the Permanent Bureau of the Hague Conference on Private International Law ("the Guide to Good Practice"). This was the basis on which a return order was set aside by the Court of Appeal in Re W and another (Children)  Fam 125. In the course of my judgment, I said, at :
"Putting it simply but, in my view, starkly, if the children were to be returned to the USA without the mother, the court would be enforcing their separation from their primary carer for an indeterminate period of time. It would be indeterminate because the court has no information as to when or how the mother and the children would be together again. These children, aged five and three, would be leaving their lifelong main carer without anyone being able to tell them when they will see her again. In my view it is not difficult to describe that situation, in the circumstances of this case, as one which they should not be expected to tolerate. I acknowledge that the current situation has been caused by the mother's actions, and that she was herself responsible for severing the children from their father but, as referred to above, the court's focus must be on the children's situation and not the source of the risk."
89. It is also relevant to note the long-standing appreciation of the risk that the effective operation of the 1980 Convention would be undermined if the taking parent was able to establish Article 13(b) by the simple expedient of deciding not to return with the child. In England and Wales, this was referred to by Butler-Sloss LJ in C v C, at p.661 D/E, when she raised the concern that refusing to make a return order "because of the refusal of the mother to return for her own reasons, not for the sake of the child … would drive a coach and four through the Convention". This is also referred to in the Guide to Good Practice, under the heading "Unequivocal Refusal to Return":
"In some situations, the taking parent unequivocally asserts that they will not go back to the State of the habitual residence, and that the child's separation from the taking parent, if returned, is inevitable. In such cases, even though the taking parent's return with the child would in most cases protect the child from the grave risk, any efforts to introduce measures of protection or arrangements to facilitate the return of the parent may prove to be ineffectual since the court cannot, in general, force the parent to go back. 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."
90. However, as was pointed out by Sir Mark Potter P in S v B (Abduction: Human Rights)  2 FLR 878, at :
"The principle that it would be wrong to allow the abducting parent to rely upon adverse conditions brought about by a situation which she has herself created by her own conduct is born of the proposition that it would drive a coach and horses through the 1985 Act if that were not accepted as the broad and instinctive approach to a defence raised under Art 13(b) of the Convention. However, it is not a principle articulated in the Convention or the Act and should not be applied to the effective exclusion of the very defence itself, which is in terms directed to the question of risk of harm to the child and not the wrongful conduct of the abducting parent. By reason of the provisions of Arts 3 and 12, such wrongful conduct is a 'given', in the context of which the defence is nonetheless made available if its constituents can be established."
91. The summary nature of the process inevitably impacts on the manner in which the court assesses the evidence. As Baroness Hale and Lord Wilson explained in Re E, at :
"… in evaluating the evidence the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13(b) and so neither those allegations nor their rebuttal are usually tested in cross-examination."
This led the Supreme Court to endorse the following approach:
" There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues."
92. This does not mean, as I said in Re C, at , that it was being "suggested that no evaluative assessment of the allegations could or should be undertaken by the court". In support of this conclusion, I quoted what Black LJ (as she then was) had said in Re K (1980 Hague Convention) (Lithuania)  EWCA Civ 720, at , about the Re E approach:
"I do not accept that a judge is bound to take this approach if the evidence before the court enables him or her confidently to discount the possibility that the allegations give rise to an Article 13b risk."
I would emphasise that Black LJ was referring to discounting the possibility that the allegations would give rise to an Article 13(b) risk. She was not otherwise diverging from the approach set out in Re E. It is also plain that she was referring to the end of the spectrum, namely when the court was able confidently to discount the possibility that the allegations gave rise to an Article 13(b) risk. This is not to dance on pins but is a distinction of substance derived from the court not being in a position to determine the truth of the allegations relied on as establishing the Article 13(b) risk.
93. It was for this reason that, in Re C at , I commented that "a judge has to be careful when conducting a paper evaluation" of the evidence. The court has to be careful for the reason given by the Supreme Court, at , namely "the inability of the court to resolve factual disputes". This creates the "tension" there identified between this inability and "the risks that the child will face if the allegations are in fact true". This led the Supreme Court to adopt the "pragmatic and sensible solution" set out above. In its concluding paragraphs in Re E, the Supreme Court repeated, at :
"Where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is bound to be on the sufficiency of any protective measures which can be put in place to reduce the risk. The clearer the need for protection, the more effective the measures will have to be."
94. In the Guide to Good Practice, at , it is suggested that the court should first "consider whether the assertions are of such a nature and of sufficient detail and substance, that they could constitute a grave risk" before then determining, if they could, whether the grave risk exception is established by reference to all circumstances of the case. In analysing whether the allegations are of sufficient detail and substance, the judge will have to consider whether, to adopt what Black LJ said in Re K, "the evidence before the court enables him or her confidently to discount the possibility that the allegations give rise to an Article 13(b) risk". In making this determination, and to explain what I meant in Re C, I would endorse what MacDonald J said in Uhd v McKay (Abduction: Publicity)  2 FLR 1159, at , namely that "the assumptions made by the court with respect to the maximum level of risk must be reasoned and reasonable assumptions" (my emphasis). If they are not "reasoned and reasonable", I would suggest that the court can confidently discount the possibility that they give rise to an Article 13(b) risk.
95. But, I repeat, a judge must be careful when undertaking this exercise because of the limitations created by it being invariably based only on an assessment of the written material. A judge should not, for example, discount allegations of physical or emotional abuse merely because he or she has doubts as to their validity or cogency. As explained below, in my view this would lead the court to depart from the Re E process of reasoning while, equally, not being in the position set out in Re K
96. If the judge concludes that the allegations would potentially establish the existence of a grave risk within the scope of Article 13(b), then, as set out in Re E, at , the court must "ask how the child can be protected against the risk". This is a broad analysis because, for example, the situation faced by the child on returning to their home state might be different because the parents will be living apart. But, the court must carefully consider whether and how the risk can be addressed or sufficiently ameliorated so that the child will not be exposed to a grave risk within the scope of Article 13(b). And, to repeat what was said in Re E, at : "The clearer the need for protection, the more effective the measures will have to be".
97. In my view, putting it colloquially, if the court does not follow the approach referred to above, it would create the inevitable prospect of the court's evaluation falling between two stools. The court's "process of reasoning", to adopt the expression used by Lord Wilson in In re S, at , would not include either (a) considering the risks to the child or children if the allegations were true; nor (b) confidently discounting the possibility that the allegations gave risk to an Article 13(b) risk. The court would, rather, by adopting something of a middle course, be likely to be distracted from considering the second element of the Re E approach, namely "how the child can be protected against the risk" which the allegations, if true, would potentially establish.
98. The likely consequence of adopting this middle course is, in my view, that the court will be treating the allegations less seriously than they deserve, if true. Equally, there is the danger that, for the purposes of determining whether Article 13(b) is established, the court will not properly consider the nature and extent of the protective measures required to address or sufficiently ameliorate the risk(s) which the allegations potentially create. In my view, as explained below, this is what happened in the present case.
99. This does not, of course, mean there is no evaluation of the nature and degree of the risk(s) which the allegations potentially establish. This is the essence of the approach endorsed in Re E because the court is required to determine whether the allegations, if true, would establish the required grave risk.
78. First, I agree with Mr Hames that, at least at some point, the effect of the allegations relied on by the taking parent should be considered together when determining whether there is a grave risk. There may, of course, be cases when this is not realistic because the allegations are not connected. However, I would suggest that, when a judge takes this course, he/she should make this clear. This is because, if they are considered only individually, there is a clear prospect of the court failing to consider their overall effect and the totality of the overall risk.
79. In the present case, I do not agree with Mr Turner's submission that the judge had "an overview of the matter". In my view, it is clear that the judge only looked at the allegations by category and individually and did not consider their overall effect. However, I would not have allowed the appeal on the basis of this alone. This is because I do not consider that, if the judge's analysis had been otherwise sound, I would have concluded that his decision that Article 13(b) had not been established was wrong.
80. In my view, however, by conflating the process as set out in Re E, the judge failed properly to evaluate the nature and level of the risk if the mother's allegations were true and also failed properly to evaluate the sufficiency and efficacy of the protective measures. This can be seen most clearly from the manner in which the judge expressed his conclusions……..
82. In my view, the judge could not confidently discount the possibility that the allegations gave rise to an Article 13(b) risk and needed to apply the Re E approach. He needed, therefore, both to analyse the nature of the potential risk(s) and then carefully consider whether and how such risk(s) could be addressed or sufficiently ameliorated so that the children would not be exposed to the risk(s). The judge did not do this, or at least did not do so sufficiently, because he conflated the process.
83. In addition, as submitted by Mr Hames, the judge's analysis was also flawed because he wrongly relied on certain matters, as summarised below, with the result that he failed sufficiently to consider "in concrete terms" the situation which the children would face on a return to Spain…..
90. The same applies in respect of the financial situation that the children would face. On the mother's case, she would have insufficient financial resources to meet, even, her and the children's basic needs. Putting to one side the judge's reliance on the father as a source of financial support, the judge had no substantive evidence that the mother would be entitled to state benefits which would enable her to meet the needs of herself and the children for any significant period of time. Again, the evidence from the Spanish authorities suggested that there was, at least, considerable fragility in the mother's position which might lead to the children being taken into care. The judge's dismissal of the mother's concern about this because they would be returned with the mother, and not returned to foster care, does not, with all due respect, address the mother's concern.
"it was … necessary …. to examine in concrete terms the situation that would actually face GP on her return to Italy. What would happen when she and her mother stepped off the plane? Would her mother be arrested? Where would they go, and what would they live on? [para 6]"
"If the judge felt that he had insufficient information to answer these questions, he should …. have adjourned the hearing so that more detailed evidence could be obtained, for example about the financial position of the mother and the practicalities of an application to commute the mother's sentence of imprisonment to community service ….[para 63]."
"…. In deciding what weight can be placed on undertakings, the court has to take into account the extent to which they are likely to be effective. This applies both in terms of compliance and in terms of consequences, including remedies, in the absence of compliance. The issue is their effectiveness, which is not confined to their enforceability…..".
The Three Stages
(a) International issue estoppel
7 June 2022, "4.3.4 There is no evidence in the case that the children were harmed as a result of the Defendant's actions."
No evidence is not evidence that the children do not face a risk of harm.
"In the opinion of the [Latvian] Court, the situation regarding joint custody of the children could improve if the parties understood that they have joint children and a joint duty to take care of them. Both the Plaintiff and the Defendant want to provide their children with a safe environment, adequate care and supervision. Therefore, there is no reason to doubt that the parties will be guided by the best interests of the children when deciding issues that can significantly affect the development of children.
A desire by the Father to provide a safe environment is not a finding that he is or will be creating such an environment.
4.4. "The application for the dismissal of temporary protection against violence has been
submitted by the Defendant.
The Plaintiff has not filed a request to determine that the temporary protection against violence is to be valid after the judgment enters into legal force (Sections eight and nine of Article 25058 of the Civil Procedure Law), nor has she raised any objections to the Defendant's application. Therefore, the means of temporary protection against violence can be dismissed without evaluating the circumstances stated in the Defendant's application. The adoption of a ruling on the dismissal of the means of temporary protection against violence does not limit the right to submit an application for temporary protection against violence, if there is a basis for temporary protection against violence specified in Article 25045 of the Civil Procedure Law.
This is indicative of the Mother having not engaged in the process. (Mr Basi (for the father) did not take a Henderson estoppel point and so I have not developed that here). Second, it expressly says that they did not evaluate the circumstances.
In the appeal – see 30.1 and 30.2 at p. 215:
[30.1] After evaluating the circumstances found in the case, namely the circumstances of the children's parents and the circumstances of the children's custody, such as unjustified insistence of one parent, categoricalness, lack of justification for the claims raised, obstacles to joint decision-making, reluctance to make joint decisions, the Court panel concludes that in the case under consideration none of the parents has implemented such conduct that would in any way endanger the development of the children or put the effective custody of the children at risk, that maintaining joint custody does not jeopardize the full development and well-being of the children. In tum, mutual differences of opinion, the personal resentment of the parties for a failed cohabitation are not grounds for awarding sole custody to one parent over minor children.
[30.2] Thus, after evaluating all previously established circumstances and evidence, the Court panel concludes that the parties have not always been able to establish respectful communication, however mutual disagreements have not hindered or interfered with making important decisions in the interests of children. In this case, there is no evidence of specific situations when the children's interests actually suffered due to the fact that the
children's parents were unable to make joint decisions on matters of custody…"
(b) The Art 13 (b) Defence
"the Plaintiff stated that: "she has been living with [the Father] for a year now because she got pregnant and gave birth to twins – [the Father] has a very good attitude towards the children, there are no problems, it's just that the parents of the children find it difficult to understand each other"; "the police were called because the Plaintiff was said to have had her heart full about this situation"; "[at the time of the conflict] both babies were sleeping on the sofa, the children were not affected in any way by this conflict and were not involved"..
"within the foregoing context I accept Mr Harrison's submission that in evaluating the extent to which the anxieties of a respondent about a return with the child that are not based upon objective risk to the respondent but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise the respondent's parenting of the child to a point where the child's situation would become intolerable, the court should consider, amongst other factors, the objective evidence (if any) that the respondent will have good cause to be anxious if the child were returned to the jurisdiction of habitual residence, as well as the protective factors that may ameliorate such a situation".
"For the purposes of my decision, I accept that a return of S will indeed impose a separation of the siblings. I accept the evidence that R and S are close; however the girls are 3˝ years apart in age. They are at a very different stage of their emotional and educational development. In the event that S is returned to France, the sisters will be able to see each other in holidays, for significant periods; although in different countries, they would be living reasonably easy travelling distance apart which would make even weekend meetings feasible. The separation may – subject to the views of the French Court on the relocation question and/or R's change of mind (as to which see  below – be only temporary.
. It is of course as much R's decision as it is mine which forces any immediate separation. R has declared a choice to be in England. In this respect, she is exercising some newly developed autonomy. That is a matter over which I have no influence let alone jurisdiction. R could just as easily decide to return to France to return to school there at least for the next year; she is after all nearly at the end of her education and may ultimately decide to complete it within a curriculum which she has thus far followed for all her school life."
"it is inconceivable that a court which reached the conclusion that there was a grave risk that the child's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate."
"The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed."
"2 The Hague Convention of 1980 is arguably the most successful ever international treaty and it has over 90 subscribers to it, over half the countries in the world. The underlying and central foundation of the Convention is that, where a child has been unilaterally removed from the land of her habitual residence in breach of someone's rights of custody, then she should be swiftly returned to that country for the courts of that country to decide on her long-term future.
3 There are very few exceptions to this and the exceptions that do exist have to be interpreted very narrowly in order that the central premise of the Convention is not fatally undermined. It is important to understand what the Convention does not do. The Convention does not order a child who has been removed in the circumstances I have described to live with anybody. The Convention does not provide that the parent who is left behind should, on the return of the child, have contact or access in any particular way. The Convention does not provide that, when an order for return to the child's homeland is made, the child should stay there indefinitely. All the Convention provides is that the child should be returned for the specific purpose and limited period to enable the court of her homeland to decide on her long-term future. That is all it decides.
4 ... Equally, if the exception that is relied on is that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place her in an intolerable situation, that again has to be seen through the lens of the objective of the Convention. We are not talking here about long- term risks. We are not talking here about long-term harm. We are talking about risks and harm that would eventuate only in the period that it takes for the court of the child's homeland to determine her long-term future and to impose the necessary safeguards, if necessary, in the interim."
"36.The exceptions to the obligation to return are by their very nature restricted in their scope. They do not need any extra interpretation or gloss. It is now recognised that violence and abuse between parents may constitute a grave risk to the children. Where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is bound to be on the sufficiency of any protective measures which can be put in place to reduce the risk. The clearer the need for protection, the more effective the measures will have to be."
"Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country."
1. On arrival, the father will not be at the airport.
2. He will not travel to her home
3. The mother's finances will be met by the father paying €1050 towards her first three months' rent and thereafter €350 per month. He will continue to pay €400 per month child support. I note that in addition the mother accepts that she would be entitled to child benefit in addition to the child support the father provides. He must pay any arrears within 7 days.
4. The father is not to be told and shall make no attempts to discover the Mother's address upon her return.
5. Any contact between the children and the father will have to be considered by the Latvian courts but this Judgment may be made available to them in support of this Court's view that there should be the most minimal contact between mother and father. This could include neutral handovers at any contact.
6. He shall pay the reasonable costs of a one-way economy class flight to Latvia for the Mother and the children.
7. The father will not support or instigate any criminal or civil proceedings in respect of the unlawful removal to England and use his best endeavours to end any existing complaint;.
8. He shall not threaten, intimidate, or subject the Mother to any violence, nor instruct any person to do so.
9. He shall not attend the Mother's place of residence without prior agreement, save for contact as agreed between us or directed by the court.
10. He shall not remove the twins from the Mother's care, save for contact as agreed between the mother and father or as directed by the Latvian court.
11. He shall arrange for the lodging of this return order with the court in Latvia as soon as reasonably possible.
12. He will continue to pay €400 per month by way of child maintenance including for October 2022;
13. The €350 Euros for rent and bills shall be paid until the first of the following (a) further order by the Latvian court (b) further order of this court (c) the mother's removal to England or (d) 1 November 2023.
i. if the Mother obtains an order in Latvia within that eight week period permitting the child to remain in England pending a full welfare hearing in Latvia then this order shall be stayed until a further hearing.
ii. That further hearing shall be fixed as soon as reasonably possible following the making of such an order in Latvia. At that hearing this order shall be reconsidered.
iii. If an order is made in Latvia permitting the twins to remain in England, then the father's obligation to pay the €350 pcm rent and bills shall also be immediately suspended.
Stay/suspension of any order for return
" Finally, in cases where a parent who has removed children from their jurisdiction of habitual residence and is facing the summary return of children to that jurisdiction forthwith, I consider that it is always important to recall the observations of Mostyn J in B v B  EWHC 1804 that the objective of the Convention is to ensure that a child who has been removed unilaterally from the country of his or her habitual residence, in breach of rights of custody, is returned forthwith in order that the courts in that country can decide his or her long term future and that a decision by the English court to return a child under the terms of a Convention is no more and no less a decision to return the child for a specific purpose for a limited period of time pending the court of his or her habitual residence deciding the long term position."
i. There are exceptional circumstances in this case as an order could result in the separation of a sibling group;
ii. The mother and the children are now in this jurisdiction and intent on making their home here with the wider family;
iii. Such a delay is consistent with the time required to bring the matter back before the Latvian courts for an interim determination.
Note 1 Part IV of the Practice Guide at p. 25§30 [Back] Note 2 Ibid. at §31 [Back] Note 3 Ibid. at p. 26§33 [Back] Note 4 Ibid. at §34, drawn from the decision of the Supreme Court in Re E (supra) at §33 thereof [Back] Note 5 Ibid. [Back] Note 6 Ibid. at p. 27§36 [Back] Note 7 Ibid. at §37 [Back] Note 8 Ibid. at p. 31§§39 - 41 [Back] Note 9 Henderson v Henderson (1843) 3 Hare 100; for discussion on this, see, generally Johnson v Gore-Wood  UKHL 65 (albeit that discussion was obiter; see Tinkler v Commissioners for HMRC  UKSC 39.) [Back] Note 10 On the mothers own case, she had litigated for two years in Latvia [157, para 52] and obtained a restraining order [158, para 56] and has applied 4 times for one. [Back]
Note 1 Part IV of the Practice Guide at p. 25§30 [Back]
Note 2 Ibid. at §31 [Back]
Note 3 Ibid. at p. 26§33 [Back]
Note 4 Ibid. at §34, drawn from the decision of the Supreme Court in Re E (supra) at §33 thereof [Back]
Note 5 Ibid. [Back]
Note 6 Ibid. at p. 27§36 [Back]
Note 7 Ibid. at §37 [Back]
Note 8 Ibid. at p. 31§§39 - 41 [Back]
Note 9 Henderson v Henderson (1843) 3 Hare 100; for discussion on this, see, generally Johnson v Gore-Wood  UKHL 65 (albeit that discussion was obiter; see Tinkler v Commissioners for HMRC  UKSC 39.) [Back]
Note 10 On the mothers own case, she had litigated for two years in Latvia [157, para 52] and obtained a restraining order [158, para 56] and has applied 4 times for one. [Back]