AT v SS

In this case I am concerned with a little boy called S. S is now aged 5 years old. This is an application by S’s father, AT for the summary return of S to Holland pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (hereafter ‘the Convention’) and the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (hereafter BIIa).

The mother of S is SS. She currently resides in this country with her husband, MM, together with MM’s child from a previous relationship. The mother is currently heavily pregnant by MM. S attends school in England and is making progress. The mother opposes the return of S to the Netherlands and submits that she has a defence to the same under Art 13(b) of the Convention. She has indicated that, in any event, she will not accompany her 5 year old son to Holland were this court to decide to order his return.

The parties have managed to agree a number of key issues in this case. Namely, it is agreed that the mother removed S from Holland at a time when S was habitually resident in that country and that the mother’s removal of S was in breach of the father’s rights of custody in respect of him. At the time the mother removed S from Holland there was also a family supervision order in force in respect of S. Accordingly, it is agreed that the mother’s removal of S from Holland was wrongful for the purposes of Art 3 of the Convention.

Within this context, both Ms Chaudhry, who appears on behalf of the father, and Ms Renton, who appears on behalf of the mother, have been astute to concentrate on the single issue that remains in contention, namely whether the mother has established that to order the summary return of S to Holland would expose S to a grave risk of physical or psychological harm or would otherwise place him in an intolerable situation for the purposes of Art 13(b) of the Convention. If I conclude that it would, Ms Chaudhry invites me to exercise the discretion that thereby arises in favour of returning S to Holland. Ms Renton invites me to exercise my discretion to refuse such a return. Whilst the dispute in this matter has crystallised into a single issue, in the particular circumstances of this case it is an issue of some complexity.

The father was born in Afghanistan and is 42 years old. He has three children from a previous relationship, all living in Pakistan. The mother was born in Kabul. She is 26 years of age. Both parties share dual Afghani and Dutch nationality. The parties met when the mother was 17 years old and the father was 33 years of age. They were married in October 2007. S was born in 2010 and lived with the mother and the father until their separation. The date of the parents’ separation is a matter of disagreement but appears to have occurred at a point between November 2011 and October 2012.

From 2011 there was extensive involvement by Dutch children’s services and the Dutch courts in S’s life. During the course of this involvement there has been a succession of what we would recognise as public law orders. S spent a period of time in foster care between June 2013 and October 2013, the Dutch court having granted authorisation for a custodial placement for S following a deterioration in the mother’s mental health. The driving force behind the continuation of this State intervention in S’s life has been a protracted dispute between the parents within which the father has been seeking, with only limited success, consistent contact between himself and S. During the course of that dispute a series of orders were made providing for contact between the father and S supervised by the Youth Care Agency. It is accepted by both parties that the last contact the father had with S was on 19 February 2014.

Turning to examine this history in a little more detail, the proceedings in Holland appear, from papers provided to this court by the Dutch authorities, to have had their genesis in concerns expressed in early 2011 regarding the mother’s ability to parent S and to co-operate with professionals. Within this context, the Child Care and Protection Board (CCPB) launched a child protection inquiry in February 2011. In March 2011 the CCPB concluded that the parents had a limited network, that both had to contend with psychological problems and that both had financial difficulties. It was recorded that the parents did not trust the support services provided by the State.

The CCPB also recorded that S had been witness to domestic violence. Within this context the father conceded that he could get very angry but asserted his anger was directed towards inanimate objects. In her statement in these proceedings the mother alleges that the father has in the past raped her. Whilst the father was arrested following that allegation the mother later withdrew the complaint. The mother also alleges in her statement that the father would get drunk and angry and verbally abuse her and that he was a controlling individual. She alleges that on one occasion he dragged her out of the house by her hair and, on another occasion, threatened to attack her with a hammer. The mother further alleges the father has issues with both drugs and alcohol and associates with dangerous people. In addition, she alleges that the father has been physically violent to S by grabbing him from her arms.

The father denies the allegation of rape and each of the other allegations of verbal and physical violence levelled by the mother. The father contends that she raised none of these allegations in the proceedings concerning S in Holland. It is conceded by the mother that there have been no incidents of verbal or physical violence since the mother separated from the father in, she says, October 2011. Whilst at one point in her statement the mother alleges that there was an incident in 2014 when the father intimidated and scared her, she confirms that she has not spoken to the father directly since 2011.

Having concluded its child protection investigation, the CCPB made an application for a provisional family supervision order on 30 March 2011. On 5 April 2011 the Dutch court placed S under a temporary family supervision order for 3 months. At the hearing on 5 April 2011 the father objected to the temporary family supervision order, contending that the mother was a very capable parent. It would appear that a request for authorisation for a custodial placement for S made by the Youth Care Agency at this time was denied.

On 27 June 2011 the temporary family supervision order was extended. It would appear that at this time the father was assisting the mother with the care and upbringing of S, although by November 2011 the mother contends that the parents had separated. An appeal by the mother against the family supervision order heard in November 2011 was dismissed. In January 2012 the father telephoned the Police and Youth Care crisis hotline alleging that the mother wished to go abroad with S. No signs of an intended departure by the mother were detected.

On 26 March 2012 the temporary family supervision order was further extended. The papers record that the mother was stable and could provide for S’s basic needs at this time. There was a recommendation that the mother “process her experiences of the past in the long term”. The father was himself undergoing psychological treatment for issues arising out of what are described as “his traumatic war years in Afghanistan”. Within these proceedings the father contends that he was never a participant in the war in Afghanistan but instead suffered from post traumatic symptoms by reason of a car accident.

On 30 May 2012 the Dutch court heard the father’s application for the court to determine the division of care with respect to S. The record of that hearing relates that the parents had joint parental authority in respect of S and that the parents were making cross-allegations against each other regarding their respective parenting of S and the safety of S in each other’s care. With respect to the father, the Office for Youth Care is recorded as stating that “there are worries about the contact between the father and his son” those worries being that the father had insufficient “pedagogic skills”. The Office of Youth Care however commended the father for recognising this, and for being open to receiving assistance. Within this context, the Dutch court considered that the father should have supervised contact with S in a ‘Contact House’ that could develop his parenting skills and assist the parents in communicating and making arrangements in respect of S. The court however noted that only the father was willing to co-operate with this proposal, the mother refusing to do so and refusing to speak with the father despite the urging of the court and notwithstanding her stated intention not to stand in the way of contact between the father and S. In the circumstances, the Dutch court (holding that contact between S and the father was in the interests of S but considering that the proposal involving the use of the ‘Contact House’ could not be implemented in the face of the mother’s unwillingness to co-operate with the same) ordered supervised contact between father and son as a starting point to be built on with the assistance of the ‘family guardian’.

The family supervision order came to an end on 15 November 2012 when the CCPB agreed with the proposal of the Youth Care Agency that it need not continue. The father contends that in October 2012 the parties’ relationship had broken down and that the mother had thereafter attempted to frustrate contact between the father and S. As I have already noted, the mother contends that the parties had separated a year earlier in November 2011. Given that that the parties had been litigating in respect of contact since at least May 2012, it would appear that the mother is more accurate in her recollection of when the parties’ relationship in fact came to and end.

Upon the family supervision order coming to an end on 15 November 2012 a referral was made to a counselling service to promote contact for the father and discussion between the parents. This was not successful. However, as at December 2012 the court recorded that, after an initial period of non-engagement, the mother complied with the contact arrangements that had been put in place in lieu of the court being able to implement the ‘Contact House’ proposal with which the mother had refused to cooperate. At the hearing in December 2012 hearing it is clear that the mother had made an application for ‘substitute consent’ with a view to obtaining a passport for S. The determination of that application was deferred.

Sadly, in late May 2013, the mother’s mental health appears to have deteriorated and she threatened to commit suicide, stating that she could not take care of S. In her statement in these proceedings the mother contends that the deterioration in her mental health was the result of the domestic violence and abuse that she suffered at the hands of the father (by this time the mother had, on her own case, been separated from the father for a period of nearly 19 months with no incidents of verbal or physical violence occurring during that period).

By reason of the deterioration in her mental health the mother agreed on 3 June 2013 that S should be cared for by her parents (the Youth Care Agency having rejected an offer by the father to care for S). However, the mother reneged on this agreement and stated that she would be resuming care of S. As a result the Child Care and Protection Board applied for a provisional family supervision order and authorisation for custodial placement. This order was granted on a provisional basis on 4 June 2013 together with a provisional family supervision order and S was placed in foster care. On 11 June 2013 these orders were extended by consent, to 31 May 2014 in respect of the family supervision order and 31 August 2013 in respect of the authorisation for custodial placement. The authorisation for custodial placement was again extended in August 2013 until 20 October 2013. It is important to note that S is recorded as having developed well in foster care, particularly in terms of language and social skills. An appeal by the mother against these orders was dismissed on 30 October 2013. At some point between October 2013 and December 2013 S was however returned to his mother’s care.

On 23 December 2013 the Dutch court noted that, despite supervision and the earlier removal of S, the parents continued not to be able to promote and develop contact without external help. The father’s lack of ‘pedagogic’ skills continued to militate against the introduction of unsupervised contact, with no noticeable development in the quality of contact between the father and S. The mother, whilst stating that she acknowledged the importance of contact between S and his father, continued to refuse to cooperate with the supervision of contact at a ‘Contact House’ as recommended by the Council for Youth Welfare in order to develop the father’s pedagogic skills. The mother stated that her opposition to this course was her lack of trust following domestic violence she alleged had been perpetrated against her by the father and the father’s lack of skills.

Within this context, and in light of the mother’s continued refusal to co-operate with the proposal for contact at a ‘Contact House’, the Dutch court once again ordered that S should continue to have contact with the father every two weeks for one hour supervised by the Youth Care Agency and that the mother should send to the father a recent colour photograph of S and his latest school report every three months. The arrangements were to continue under the supervision of the Youth Care Agency or another authority. At this time S was recorded as developing well in his mother’s care and commenced primary school in January 2014.

On 25 February 2014 the mother moved outside the Haaglanden Region in Holland where she had, up to that point, been residing with S to another area of the country without notifying the Youth Care Agency. This caused contact between S and his father to stop. As I have already recounted, the father has now not seen S since 19 February 2014. On 31 March 2014 a written instruction was issued to the mother by way of enforcement due to her failure to comply with the order for contact. The mother failed to comply.

The mother’s departure from the Haaglanden Region also appears to have caused the Youth Care Agency to evince an intention not to extend the family supervision order, resulting in an investigation of the position by the CCPB. This revealed that the mother had no confidence that the father could learn necessary parenting skills (this notwithstanding that the mother had consistently refused to co-operate with the proposal for the father’s contact to take place at a ‘Contact House’ with a view to improving his parenting skills) and that she envisaged no role for the father in the life of S. The mother alleged that the father continued to “harass her with procedures”. For his part the father did not object to the continuation of supervised contact as long as he was able to continue to see S but alleged that the mother was obstructing this. The CCPB concluded that there should be an extension to the family supervision order because of the consequences of the “hefty” and continuous battle between the parents which was damaging S and undermining his development. The CCPB considered that no attention had been paid to what the sudden loss of S of contact with his father would mean for him.

On 7 May 2014 the Dutch court granted an extension to the family supervision order. The court was concerned that whilst S had made progress in the mother’s care, this was only over a short duration and that during that period the mother had suddenly moved to another part of the Netherlands, causing contact with the father to cease. In circumstances where this caused a lack of clarity regarding S’s progress and in circumstances where the Court was satisfied that a way had to be found of restarting contact between S and his father given its importance to the development of S’s identity, the Dutch court further extended the family supervision order to November 2014. On 21 September 2014 the mother remarried.

On 5 November 2014 the Court of Appeal in The Hague heard the father’s appeal in respect of the order made on 23 December 2013. The father’s grounds of appeal were, inter alia, that the court of first instance had failed to give sufficient weight to the fact that the mother had acted to frustrate contact without any apparent consequence, which had heavily and unacceptably influenced the care arrangements in respect of S, and had failed to give sufficient weight to the fact that supervised contact was not a sustainable option. Within this context, the father contended that the first instance court should have ordered contact at a ‘Contact House’ notwithstanding the mother’s opposition as recommended by the Council for Youth Welfare. In answer, the mother contended that the father was seeking to leave out of consideration his own role in the impasse between the parents, including him subjecting her to physical and sexual violence, in which circumstances it was reasonable for her not to have contact with the father regarding the care arrangements for S. The mother contended that it was the lack of development of the father during contact with S that was at the heart of that contact not being able to progress.

The appeal court concluded that considering “the mother’s uncooperative attitude in the past and at the hearing and the doubt that exists regarding the pedagogic skills of the father” the parents should have been referred to a ‘Contact House’ as had been recommended to the court of first instance by the Council for Youth Welfare. Within this context the court allowed the father’s appeal.

It is also of note that the Dutch Court of Appeal recorded in its judgment that the court had expressly informed the mother that her parental authority included the advancement of the development of S’s ties with his father. Further, the court concluded that “considering the mother’s attitude (in the case) until now, and the attitude she showed at the hearing” the mother should pay a financial penalty of EUR 100 for each occasion of non-compliance with supervised contact up to a limit of EUR 5000. Finally, the father asserts that whilst during the hearing at the Court of Appeal the mother informed the court that she wished to relocate to England with her new husband, the Judge warned the mother expressly that she could not leave the Netherlands without the father’s consent or an order of the court.

The mother removed S from Holland without the consent of the father or an order of the court two weeks after the hearing before the Dutch Court of Appeal. As I have already noted, the mother concedes that this removal was wrongful for the purposes of Art 3 of the Hague Convention.

The history of this matter in Holland as recounted above comes primarily from official documents provided to this court in translation by the Dutch authorities, supplemented where appropriate by information from the statements provided by the parties. Within this context, I consider the foregoing account to be an accurate picture of the circumstances which led up to the mother’s abduction of S, accounting of course for the vagaries of translation.

The Father made his application under the Child Abduction and Custody Act 1985 on 26 February 2015, which application was issued on 9 March 2015. A series of interlocutory hearings followed at which orders were made to facilitate the location of the mother and S in England. The mother was personally served with the father’s application on 2 April 2015. On 16 July 2015 I adjourned the final hearing of this matter in circumstances where information from Holland required to inform the court’s decision remained outstanding. I heard submissions at the adjourned final hearing on 11 September 2015.

During the course of these proceedings a request for information from the Dutch Authorities was submitted via the Dutch Central Authority seeking confirmation of the history of the involvement of the Dutch authorities with the family and confirmation of the practical measures that would be taken by the Dutch authorities should this court make a return order in respect of S, both in circumstances where the mother returned with S and where she did not. In correspondence dated 24 July 2015 and 17 September 2015 (the latter received after I had concluded hearing submissions but before I reached my decision in this matter) the CCPB confirmed as follows:

I have had the benefit of seeing a Guide for Parents provided by the CCPB, which guide sets out the tasks of the CCPB, the manner in which it carries out assessments and the quality framework which it applies when dealing with families in which parenting has become an issue and in deciding whether to make a request of the courts to impose child protection measures.

The law in respect of the defence of harm or intolerability under Art 13(b) was examined and clarified by the Supreme Court in Re E (Children)(Abduction: Custody Appeal) [2011] 2 FLR 758. The applicable principles may be summarised as follows:

In this case, the mother relies on the fact that S will be separated from her and placed in foster care if an order for the return of S is made as establishing for the purposes of Art 13(b) that an order for return will expose S to a grave risk of physical or psychological harm or will otherwise place him in an intolerable situation.

Whilst separation of the child from his or her primary carer can ground a defence under Art 13(b) (see for example D v D (Child Abduction: Non-Convention Country) [1994] 1 FLR 137 applying Hague Convention principles) it is by no means inevitable that a plea of grave risk of harm or otherwise intolerable situation arising out of separation, or potential separation from a primary carer will succeed (see for example Re S (Abduction: Return to Care) [1999] 1 FLR 843 and Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478). Whether the separation of a child from his or her primary carer satisfies the imperatives of Art 13(b) will depend on the particular facts in each case.

In this case the mother argues that an element of the grave risk of harm or intolerable situation that S will be exposed to upon his return in circumstances where he has been separated from her is constituted by the likelihood that S will be placed temporarily in foster care in Holland. Having regard to the principle of comity, it is well established that in judging whether there is a grave risk following return for the purposes of Art 13(b) of the Convention, the court should accept that, unless the contrary is proved, the administrative, judicial and social services in the requesting State are as adept at protecting children as they are in the requested State (see Re H (Abduction: Grave Risk) [2003] 2 FLR 141, Re M (Abduction: Intolerable Situation) [2000] 1 FLR 930 and Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433). As regards a return to a placement in care in the requesting State, where the requesting State has adequate procedures for protecting the child, and accepting that each case must turn on its own facts, it is unlikely that a parent will be able to successfully oppose a return on the basis that the child is being returned into temporary public care pending the courts making a substantive welfare determination (see Re M (Abduction: Intolerable Situation) [2000] 1 FLR 930 and Re S (Abduction: Return to Care) [1999] 1 FLR 843). Once again however, each case will turn on its own facts.

During the course of submissions I heard argument on the extent to which the source of the grave risk of harm or otherwise intolerable situation to which it is said that S will be exposed on return is relevant when examining whether the defence under Art 13(b) is made out.

In this case, the nature of the grave risk of harm or otherwise intolerable situation that Ms Renton says would occur in the event of an order for return is the grave risk of psychological harm or intolerability consequent upon S being separated from his primary carer and being placed in State care whilst the Dutch courts determine his long term welfare. Ms Renton contends that this situation plainly satisfies the demands of Art 13(b). Having regard to the position of the mother which I have already outlined, in the circumstances of this case the source of the grave risk of harm or otherwise intolerable situation to which it is said S will be exposed upon his return is the mother’s conscious refusal to return to Holland with S if a return is ordered by this court.

Ms Chaudhry argues on behalf of the father that the mother in this case is accordingly, by reason of her refusal to return to Holland with S if the court so orders, herself the author of the grave risk of harm or intolerable situation upon which she seeks to rely. Ms Chaudhry submits that it would be wrong for the Court not to take into account the fact that the mother seeks to rely on a situation of her own making when deciding whether the defence under Art 13(b) is made out. In support of her submission Ms Chaudhry relies in her comprehensive skeleton argument on C v C (Minor: Abduction: Rights of Custody) [1989] 1 WLR 654 in which Butler-Sloss LJ (as she then was) stated that:

“The grave risk of harm arises not from the return of the child, but from the refusal of the mother to accompany him. The Convention does not require the court in this country to consider the welfare of he child as paramount, but only to be satisfied as the grave risk of harm. I am not satisfied that the child would be placed in an intolerable situation if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the Convention because of the refusal of the mother to return for her own reasons, not for the sake of the child. Is a parent to create the psychological situation, and then rely on it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parents who abducted him, then it would be relied on by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of the child who should be living in his own country and deny him contact with his other parent. As Balcombe LJ said in Re E (A Minor)(Abduction) [1989] 1 FLR 135, 142:

‘…the whole purpose of the Convention is…to ensure that parties do not gain adventitious advantage by either removing a child wrongfully from the country of its usual residence, or having taken the child, with the agreement of the other party who has custodial rights, to another jurisdiction, then wrongfully retain the child.’

If this mother will not accompany the child, despite the knowledge that his rightful place is in New South Wales, the, on the facts before the court, I am not satisfied that Art 13(b) applies and, in my judgment, the child should return to his father.”

By her helpful skeleton argument Ms Renton anticipates Ms Chaudhry's submission and cries foul. Ms Renton submits that the source of the grave risk of harm she contends for (in this case the mother’s conscious refusal to return with her child to the Netherlands in the event the court orders a return) is irrelevant to the question of whether Art 13(b) is satisfied in this case.

Ms Renton seeks support for her submission in the decisions of the Supreme Court in Re E (Children)(Abduction: Custody Appeal) and Re S (A Child)(Abduction: Rights of Custody) [2012] 2 FLR 442. In Re E (Children)(Abduction: Custody Appeal) Ms Renton points to the fact that Baroness Hale, in examining the terms of Art 13(b), noted at [34], with apparent approval, that leading counsel for the father, Mr James Turner QC, accepted that if there is a grave risk of harm the source of that grave risk of harm is irrelevant. Ms Renton further points to a passage in Re S (A Child)(Abduction: Rights of Custody) at [27] where Lord Wilson confirms that the Supreme Court was indeed citing with approval in Re E the concession of Mr Turner QC that where there was a grave risk of harm the source of that grave risk of harm is irrelevant.

Within this context, Ms Renton submits that to take account of the fact that the mother is the author of the grave risk of harm on which she now relies when determining whether the defence under Art 13(b) is made out in this case would be to place the kind of gloss on Art 13(b) that the Supreme Court expressly deprecated in Re E.

Having regard to the helpful submissions I have heard on this issue and the decisions of the Supreme Court in Re E and in Re S, it seems to me that the position is as follows.

The Supreme Court has endorsed clearly the principle that where it is established that the situation on return would expose the child to a grave risk of harm or otherwise place him or her in an intolerable situation then the source of the grave risk of harm or intolerable situation is irrelevant. This must be consistent with the status of Art 13(b) as a narrow welfare exception to the general obligation under Art 12, which narrow exception is designed to legislate for those very limited number of cases where an order for return would result in a grave risk of physical or psychological harm or would otherwise place the child in a situation that is intolerable to that child. To take the present case as an example, were the court to conclude that a return to Holland would expose S to a grave risk of physical or psychological harm or would otherwise place S in an intolerable situation by reason of his being separated from his mother and placed in care in Holland, from S’s perspective whether that separation, and all that flows from it, is due to the mother’s contumelious attempt to frustrate the Convention process or an involuntary inability to travel or something between those two extremes is neither here nor there for S. The risk of harm is grave or the situation intolerable for S either way.

However, to say that where it is established that the situation on return would expose the child to a grave risk of harm or otherwise place him in an intolerable situation the source of that grave risk of harm or intolerable situation is irrelevant is not the same as saying that the source is irrelevant to the task of establishing whether the situation on return would so expose the child. To take another example. Once it is established that anxieties on the part of a mother about a return with the child, whilst not based upon objective risk to her, are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child’s situation would become intolerable, the defence under Art 13(b) is established and the source of the intolerable situation, namely the mother's subjective anxiety, becomes irrelevant. However, a prior examination of the mother's anxieties (i.e. the source of the contended for intolerable situation) and whether they are in fact of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child is plainly required when establishing whether the same would reach a degree where the child’s situation would become intolerable for the purposes of Art 13(b). As Lord Wilson made clear in Re S (A Child)(Abduction: Rights of Custody) at [34]:

“In the light of these passages we must make clear the effect of what this court said in Re E (Children) (Abduction: Custody Appeal). The critical question is what will happen if, with the mother, the child is returned. 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, and 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.”

Within this context, I am unable to accept the submission that the source of the grave risk of harm or intolerability contended for in a given case is simply irrelevant to establishing whether the criteria set out in Art 13(b) are met. It follows that I am also unable to accept the submission that the fact that the mother in this case is, by her conscious refusal to return, the source of the situation that S would face were he is returned to Holland is simply irrelevant to establishing whether that situation will expose him to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation. Were the court to conclude that on return to Holland separation from his mother and placement in care would expose S to a grave risk of physical or emotional harm or would otherwise place him in an intolerable situation then it is correct that it matters not whether the separation and all that follows is due to the mother’s contumelious attempt to frustrate the Convention process or an involuntary inability to travel or something between those two extremes. The mother’s conscious refusal to return is nevertheless relevant to the court’s assessment of whether the situation for S should he be returned to Holland falls within the tightly drawn boundaries of Art 13(b).

This of course begs the question to what extent should the court take into account the conscious refusal by a parent to return with the child when assessing what the situation of the child will be upon his or her return. The passage from C v C (Minor: Abduction: Rights of Custody) I have quoted above suggests that it is a factor of “the greatest importance”. It is plain from that passage that the Court’s conclusion that it is a factor of “the greatest importance” was founded on what the Court of Appeal considered to be the imperative need to maintain fidelity to the aims of the Convention, which aims would be fundamentally undermined were a parent permitted deliberately to frustrate its operation.

However, it is also important to note that a conscious refusal by a parent to return, which refusal itself creates the situation on which the parent seeks to rely to establish a defence under Art 13(b), will not inevitably lead to the conclusion that the defence cannot be made out. To so conclude would be to place on the words of Art 13(b) a gloss which they cannot not bear. Within this context, in S v B and Y [2005] EWHC 733 (Fam) at [49] Sir Mark Potter, P held as follows having considered C v C (Minor: Abduction: Rights of Custody):

“The principle that it would be wrong to allow the abducting parent to rely upon adverse conditions brought about by a situation which she herself has 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 Article 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 the risk of harm to the child and not the wrongful conduct of the abducting parent. By reason of the provisions of Articles 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.”

Thus, accepting the imperative need to maintain fidelity to the aims of the Convention, it is important in cases where a parent refuses to return that, in determining whether a defence under Art 13(b) is made out, the primary focus of the court remains on the question of the risk of harm or intolerability to the child rather than the conduct of the abducting parent. Within this context, it is important again to bear in mind that Art 13(b) looks to the situation as it would be if the child were returned forthwith to his or her home country and that the situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. The significance for the situation the child will face upon return of a parent’s refusal to return must in each case be evaluated in the context of the protective measures that can be put in place to mitigate the impact of the same.

Within this context, Ms Chaudhry submits that this court has jurisdiction to compel the mother to return with S if she maintains her refusal to do so. Ms Chaudhry relies in this regard on the decision of the President in Re Jones (No 2) [2013] EWHC 2730 (Fam). As Ms Renton points out, the circumstances in Re Jones can be heavily distinguished from the facts in this case. Following two successful applications for return orders, the mother in Re Jones made repeated and unsuccessful attempts to have the orders set aside. Following this, the mother went on the run with the children and was only discovered after considerable publicity. There then followed further protracted litigation in respect of the two older of the four children in an effort to secure their return. It was within this context that the President, having regard to the duty on national authorities to take all necessary steps to facilitate the execution of orders as can reasonably be demanded in the specific circumstances of each case, granted an order that the mother “return or cause to be returned” the children. Ms Chaudhry accordingly argues that this court not only has the power to compel the return of S but also has the power to compel the mother to return with S to Holland even in the face of her refusal to do so. For my part I am not convinced that Re Jones is authority for that proposition. It seems to me that the order in the alternative made by the President in Re Jones case was to ensure, one way or another, the return of the children rather than to compel the mother to accompany them. I however of course accept Ms Chaudhry’s submission that a penal notice may be attached to a return order and that enforcement proceedings taken against the abducting parent if the child is not returned to the requesting State pursuant to that order.

Finally on the subject of the law applicable in this case, as pointed out by Mostyn J in B v B [2014] EWHC 1804 it is always important to remember 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. It is likewise important to recall that a decision by the court to return a child under the terms of the Convention is, nor more and no less, a decision to return the child for a specific purpose and for a limited period of time pending the court of his or her habitual residence to deciding the long term position.

Whilst in her written evidence the mother sought to ground a grave risk of physical or psychological harm in the history of alleged domestic abuse on the part of the father, Ms Renton made clear during the course of her submissions on behalf of the mother that the mother’s primary submission with respect of Art 13(b) is that its terms are met in this case by the fact that an order for return will result in S being separated from his mother and primary carer and placed in foster care in Holland.

In my view this concession was well made. In my judgment, taken at their highest, the mother’s allegations of domestic abuse cannot be said to found a conclusion that S would be exposed to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation upon return, not least because the last incident on which the mother can properly rely occurred, at the latest, in 2011. Even if one takes the date of the parents separation as contended for by the mother as marking the last incident of alleged domestic abuse (and the evidence suggests that matters may have settled somewhat before that time) the last incident of domestic abuse contended for by the mother was nearly four years ago and the mother lived in the same country as the father for nearly three years after the last allegation of abuse without incident. Within this context, the mother’s allegations concerning domestic violence do not, even if taken as the truth, come close to satisfying the terms of Art 13(b).

The father seeks the return of S to the Netherlands. In addition to emphasising that fact that S was wrongfully removed from that jurisdiction, the father contends that the only way that S will be able to have and maintain a relationship with his father is if he is returned to Holland. The father offers the following undertakings should the mother return with S to Holland pending the Dutch courts determining the long term welfare outcome for S:

In the event that the mother refuses to return to Holland with S, and in circumstances where the CCPB have recommended that S be placed in an alternative placement whilst it explores the viability of placed with the father, the father is agreeable to S being placed in foster care in the interim. He intends to advance members of his family and a number of friends as possible candidates to care for S pending the outcome of his assessment by the CCPB. The father will also support the CCPB in seeking a supervision order in respect of S.

In the circumstances, the father invites the court to order the return of S to Holland within six weeks of the date of the order to allow the CCPB time to complete its assessment and to make arrangements for the reception of S in the Netherlands. The father contends that even if the mother refuses to remain in Holland with S pending the determination his welfare by the Dutch courts, the mother should travel with S to Holland and facilitate his handover to foster carers. Within this context, as I have recounted, Ms Chaudhry invites me to compel the mother to return to Holland with S.

I have come to the conclusion in this case that I must order the return of S to the Netherlands following his wrongful removal from that jurisdiction by the mother. My reasons for so concluding are as follows.

The mother concedes in this case, as she must, that she wrongfully removed S from Holland. Whilst the mother’s concession is properly made, it should not disguise the fact that this was, in my judgment, a blatant wrongful removal on the part of the mother. The timing of the mother’s abduction of S is in my judgment highly significant when one considers its proximity to the decision of the Court of Appeal in The Hague and the steps taken by that court to enforce and promote supervised contact between the father and S. Whilst the mother informed the Court of Appeal of her wish to move to England, it would appear that the court warned the mother in the plainest terms that she was not permitted to do so without the consent of the father or an order of the Court. In any event, the mother left England in the face of an order by the Court of Appeal against the mother that sought to enforce contact between S and his father by means of the imposition of financial penalties. Within this context, the mother’s conduct gives every impression of being a barefaced and cynical abduction designed specifically to avoid the provisions imposed by the Dutch court to ensure a continuing relationship between S and his father.

The mother’s submission is that, notwithstanding this position, she has a defence to the father’s application for an order for return, the terms of Art 13(b) of the Convention being met in this case by the fact that an order for return will result in S being separated from her, his primary carer, and placed in foster care. Ms Renton further emphasises the fact that an order for return would also result in S being separated from his soon to be born half-sibling.

Leaving out of the equation for the moment the fact that it is the mother’s own conscious refusal to return to Holland with S that will result in the situation that will face S on his return, can it be said that the separation of S from his mother and primary carer, and his placement in foster care in Holland, will expose him to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation upon his return having regard to the protective measures that can be put in place such that the defence under Art 13(b) is made out in this case. In my judgment it cannot.

The Supreme Court has emphasised that for a defence under Art 13(b) to be made out the risk of physical or psychological harm must have reached such a level of seriousness as to be characterised as “grave” (Re E (Children)(Abduction: Custody Appeal) at [33]). The Supreme Court has also made clear that words ‘physical or psychological harm’ gain colour from the alternative ‘or otherwise placed in an intolerable situation’ in Art 13(b). ‘Intolerable’ is a strong word, but when applied to S must mean a situation which S, in his particular circumstances, should not be expected to tolerate. Examples of situations it would not be reasonable to expect S to tolerate on his return are being subjected to physical abuse or neglect or being exposed to the harmful effect of seeing and hearing the physical or psychological abuse of his mother (Re E (Children)(Abduction: Custody Appeal) at [34]).

It is important to remember that every child has to put up with a degree of discomfort and distress (Re E (Children)(Abduction: Custody Appeal) at [34]) and that there will be a degree of psychological harm inherent in returning S to Holland. In C v C (Minor: Abduction: Rights of Custody) Lord Donaldson MR noted that:

“We have also had to consider Art 13, with its reference to “psychological harm”. I would only add that in a situation in which it is necessary to consider operating the machinery of the Convention, some psychological harm to the child is inherent, whether the child is or is not returned. This is, I think, recognised by the words “or otherwise place the child in an intolerable situation” which cast considerable light on the severe degree of psychological harm which the Convention has in mind. It will be the concern of the court of the State to which the child is to be returned to minimise or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those courts in the circumstances of the case, the courts of this country should assume that this will be done. Save in an exceptional case, our concern, i.e. the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country, Australia in this case, can resume their normal role in relation to the child.”

Within this context, I once again remind myself that the situation which S will face on return also depends, crucially, on the protective measures which can be put in place on his return and that the question of whether the return of S will expose him to a grave risk of physical of psychological harm or will otherwise place him in an intolerable situation must be evaluated in the context of those protective measures.

In this regard, I must assume (the contrary not having been proved) that the administrative, judicial and social services in Holland are as adept at protecting S as the administrative, judicial and social services in this jurisdiction. In particular, I must assume that Holland has adequate procedures for protecting S in foster care, which procedures extend to ensuring that any psychological distress consequent upon his temporary separation from his primary carer is appropriately addressed (Re S (Abduction: Return to Care) [1999] 1 FLR 843). There is in any event in this case ample evidence that the social services in Holland are adept in this regard. The Dutch authorities have in the past intervened to protect S when his mother was unable to care for him for a period of time and managed the situation such that S developed well in foster care and was able to return to his mother in due course. Moreover, the mother willingly accepted this intervention and has at no point contended that the placement of S in foster care for a temporary period exposed him to a grave risk of physical or psychological harm or otherwise exposed him to a situation that was intolerable for him. In the circumstances, and accepting that S is now two years older, beyond the demands of comity I am satisfied in this case that adequate protective measures will be put in place to address any psychological distress and emotional upset experienced by S consequent upon his being returned to Holland without his mother and being placed in foster care. The corollary of this is that I must reject Ms Renton’s concise submission that, in this case, “the placement is the harm”.

In the foregoing circumstances, and in particular having regard to the protective measures that which can be put in place to safeguard S pending the determination of the substantive welfare issues in Holland, in my judgment it cannot be said that the separation of S from his mother and his placement in foster care consequent upon an order returning him to Holland in order that the Dutch court can determine the long term welfare of S will expose him to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation for the purposes of Art 13(b). I of course accept that S will be caused a degree of psychological distress and emotional upset by being separated from his mother and placed in foster care. However, having regard to the protective measures that can be put in place by the Dutch authorities, I am not satisfied that that level of distress and upset will be such as to meet the narrow exception to the obligation to return constituted by Art 13(b). In such circumstances, there being no other basis for making out a defence in this case, I am required to make a return order.

It would also in my judgment be wrong in this case to allow the mother to frustrate the aims of the Convention by relying on a situation which she herself has brought about. However, whilst it is vitally important that the court maintains fidelity to the principles and aims of the 1980 Convention, I make clear that the driving factor in my decision that in this case the defence under Art 13(b) is not made out is my conclusion that the level of distress and upset that will be caused to S by separation from his mother and placement in foster care in Holland does not meet the criteria for establishing that defence.

For the reasons set out above, I question whether the court has the power to compel the mother to return with S to Holland in the face of her refusal to do so. In any event, I am not going to make any orders compelling the mother to return with S. She should in my judgment have the opportunity to decide for herself that, in circumstances where the court is compelled to make a return order in respect of her son, it would be obviously to his benefit that she accompany him to Holland and remain with him in that jurisdiction pending a determination by the Dutch courts of his long term welfare.

Within this context it would be my hope that the mother will reconsider her decision not to travel with S when he returns to Holland. The mother has advanced a number of reasons for her unwillingness to travel with S, which reasons have evolved over time. She has attempted in the past to posit a medical basis for her position, namely that by reason of suffering from hyperemesis giavidaium (excessive morning sickness). However, the evidence she has produced from her general practitioner has not suggested an inability to travel. A letter from the mother’s general practitioner dated 23 June 2015 states that “As regards travel, medically there is not much I can say, except that she would prefer not to travel because of the stress of the situation” and suggests “caution” regarding travel. Whilst the Mother has also stated that she would not be able to cope emotionally returning to the Netherlands due to the father making her “life hell”, it is of note that she resided there for a significant period after her separation from the father without apparent difficulty and more than held her own during the litigation concerning contact between the father and S. The mother has family in the Netherlands (mother, father, elder brother and sister and younger brother) who have properties. The mother also benefits from being a Dutch citizen.

For the reasons set out above, I make an order for the return of S to the jurisdiction of Holland pursuant to Art 12 of the Convention. There will be a penal notice attached to that order. The Dutch courts are the courts with jurisdiction in respect of S, it is the Dutch courts which have long experience of S and his family and which have made repeated orders to safeguard S’s welfare and it is the Dutch courts which ought to decide the long term welfare of S.

Whilst the Convention provides for any return to take place forthwith, there will have to be a short delay in this case whilst the necessary arrangements are made for the reception of S in Holland. These arrangements will include the need to notify the CCPB of the decision of this court, the need for an interim foster care or kinship placement to be identified as detailed above and the need for arrangements to me for transporting S to the Netherlands in the event that the mother persists in her stated intention not to accompany her child to that jurisdiction. The timing of the return of S will need to account for the resolution of these practical issues.

That is my judgment.