This is an application pursuant to the Child Abduction and Custody Act 1985 seeking the return of GP who, it is agreed, was wrongfully removed from Italy on the 10^th February 2016 by her mother (M). GP is 11 years old and presently lives with her mother alternating between Shrewsbury during the week and Derby at the weekends. F lives in San Benedetto Del Tronto, Italy.

The Applicant father (F) was born in Italy, the Mother in Latvia. The couple married in Italy in May 2001. They were primarily based in San Benedetto Del Tronto but travelled periodically to Latvia. GP was born in Latvia in December 2005. The parties returned to Italy on a permanent basis in September 2010. GP started nursery.

It is plain that the marriage was in difficulty by November 2010 and early in 2011 Divorce proceedings commenced. Following the parties separation M removed GP from the family home to Sommacampagna, Northern Italy, 450 Km away. F reported this unlawful removal to the police and Court proceedings were commenced. In November 2014 M was sentenced to 1 year in prison for the removal of the child, by the ‘Court of Ascoli Piceno, Criminal Division’. An appeal against that decision was rejected by the Court of Appeal in Ancona on the 12^th January 2017. It is important to record a number of paragraphs from the judgment of that Court:

The impact of this custodial sentence has been the focus of submissions, during the course of this hearing and I will return to it below. It is also necessary to record that on the 24^th July 2014 the Court of Ascoli Piceno granted joint custody of GP to M and F. That Order, which has been filed in these proceedings, provided that GP shall live each year in the care of M from 11^th September until 9^th June and in the care of F from 10^th June to 10^th September. In addition, there was provision for alternate weekend contact and midweekly contact, F was ordered to pay child support of 300 Euros per/month. I note that the maintenance order was also subject of an appeal, dismissed by the Court of Appeal in Ancona on the 11^th August 2015.

It is M’s own case that she complied with the contact and care arrangements. GP’s school report for this period reveals her to be making good progress in the classroom, an intuitive learner and able to ‘gather, analyse and re-use information’. She is described as ‘well integrated into the classroom’.

There has been no dispute that at the time of her removal GP was habitually resident in Italy. M’s defence is set out within her statement of defence. She relies upon Article 13 of the 1980 Hague Convention, namely that:

There is a grave risk that GP’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation; and/or

GP objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views.

Proceedings in this jurisdiction were instituted on the 25^th January 2017 when Parker J issued a Location Order. On the 26^th January the Tipstaff Order was executed on the maternal uncle who disclosed that M was living in Shrewsbury with a man called Steve. The uncle asserted that he did not know M’s address in Shrewsbury, confirmed that GP was attending school but was unable to give the name of it. On the 30^th January the case was restored before Moor J who made orders intended to facilitate locating the child. Those orders were unproductive.

In pursuance of the whereabouts of M, Peter Jackson J made further orders on the 28^th February, including an order compelling the attendance of the maternal uncle ‘to give evidence before a Judge and to answer questions on oath concerning what he knows about the whereabouts of the said child, where they are and where they might be found’. On the 28^th February, F’s solicitors made contact with the maternal uncle who asserted that M was living with him. Accordingly, repeated attempts were made by the Tipstaff to serve M at the uncle’s address. It is not necessary for me to set out those efforts, I merely observe that M was eventually served on the 1^st March 2017. Whilst M denies any knowledge of the proceedings until early March, I find that wholly unconvincing. It is inconsistent with her case that she spends every weekend with her brother. This was a determined and cynical evasion of service.

The court is not obliged to order the return of the child if ‘the person, institution or body which opposes its return establishes that…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 Supreme Court clarified the principles to be applied in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27:

The following passage also requires to be set out and, in my view, emphasised:

The predictive nature of Article 13b is underscored:

Addressing the challenge facing the Judge in the face of factual dispute, Baroness Hale observed:

As to the application of the guidance, the Supreme Court endorsed the approach of Charles J in its judgment in Re S (Abduction: Article 13(b) Defence) [2012] 2 FLR 442:

I think that it is helpful to condense the principles that required to be applied. Thus:

There must be a grave risk of the harm alleged to the child;

Intolerable harm means a situation which the particular child should not be expected to tolerate in the circumstances. Harm includes both physical and psychological harm. This encompasses exposure to the physical and psychological harm done to a parent;

The source of the risk of harm is irrelevant such that it may stem from the subjective perception of a parent which could have intolerable consequences for the child;

If the risk is serious enough the court is not only concerned with the child’s immediate future as the need for protection may persist.

From the case law, referred to above, Ms Chaudhry on behalf of F, distils the following principles. I agree with her that these can be helpfully summarised:

The burden of proof lies with the person who opposes the child’s return. The standard of proof is the balance of probabilities;

Article 13(b) is not to be constructed narrowly; by its very terms, it is of restricted application. The words of the Article were plain and needed no further elaboration or gloss;

It is rarely appropriate to hear oral evidence of the allegations made under article 13(b);

The risk of the harm must be “grave”; it was not enough for the risk to be “real”. It must have reached such a level of seriousness as to be characterised as “grave.” A relatively low risk of death or really serious injury might properly be qualified as “grave” while a higher level of risk might be required for other less serious forms of harm;

Intolerability denotes a situation that the particular child in the particular circumstances of the case should not be expected to tolerate;

The source of the risk is irrelevant: eg. where a mother’s subjective perception of events leads to a mental illness which could have intolerable consequences for the child;

When assessing the risk that a child faces on return the court will have regard to protective measures;

Critically, pursuant to Article 11(4) of Brussels II Revised a court cannot refuse to order a child to return when Article 13(b) is raised when it is “established that adequate arrangements can be made to secure the protection of the child after return”;

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;

Inherent in the Convention is the assumption that the best interests of children as a primary consideration are met by a return to the country of their habitual residence following a wrongful removal. That assumption is capable of being rebutted only in circumstances where an exception is made out.

Neither Mr Hepher nor Ms Chaudhry has asked me to evaluate the allegations of domestic violence. They are correct in this approach. The Italian courts are seized of these issues and the Court of Appeal in Ancona has, in an admirably succinct judgment, made its findings on these issues. The basis upon which it is contended that GP’s return puts her in an ‘intolerable’ situation is essentially: F is only able to make limited financial provision (300 Euros per/month); no accommodation has been provided for M or GP; M is unlikely to find satisfactory employment; M faces a custodial sentence on her return.

I do not doubt that M is likely to find it difficult to manage her finances in Italy. Indeed, I have no difficulty in accepting that her unlawful removal of her daughter to the UK was motivated by a determination to provide a better quality of life for her. That said, the Italian Court made orders in relation to maintenance and rejected F’s appeal and has plainly been vigilant to see that GP receives provision. Moreover, whilst M may not find the volume of work available to her that has been possible in UK she has, historically, been able to find work as a translator in Italy.

The parties have both drawn my attention to the advice received in relation to the legal framework applicable to M’s circumstances in Italy. These are to be found in the Rules on the Penitentiary Order and the Implementation of the Privileges and Limitations of Freedom (16^th April 2015, No. 47; G. U. 23.04.2015, n 94 at Chapter vi: Alternative Measures to Determining and Dismissing the Debt, Article 47). This provides :

The measure is adopted on the basis of results of personality observation, carried out collegially for at least one month in the institution, in cases where it can be considered that the measure itself, also through the prescriptions referred to in paragraph 5, contribute to the re-education of the offender and ensure the prevention of the danger that he commits other offences.”

Ms Gerardina Orlandella, the Italian lawyer advising the parties, asserts that this should be interpreted as follows: ‘I confirm you that is possible to converte her sentence to imprisonment to community service’. This is the extent of the advice on the point, provided by email to Ms Ramus of Dawson Cornwell, Solicitors. The advice is less than pellucid in clarity but it is apparent that a 12 month custodial sentence is far from inevitable. That said, the wrongful removal of GP to the UK has, so far, not been the subject of a prosecution. Whether it will be is entirely a matter for the Italian authorities. The seriousness of these offences is underscored in our own courts, see: Regina v H (R) and another [2016] EWCA Crim 1754.

Whilst I do not discount the possibility that M may serve a period in custody and that this, if it happens, will be traumatic to GP, it does not seem to me, on a proper construction, to amount to intolerability even in a subjective sense, by which I mean: ‘a situation which this particular child in these particular circumstances should not be expected to tolerate’. Moreover, to conclude otherwise would be, it seems to me, to undermine the central principle of comity which underpins these proceedings. Every child who is returned to a country from which he has been wrongfully removed must, logically, face the prospect that the abducting parent may be incarcerated. All children bear a burden when a parent serves a custodial sentence. These are part of the inevitable repercussions from which children can not always be protected. Indeed, the realisation that actions have consequences and that breaches of the law may attract punishment, may be harsh lessons for a child but ones which carry at least some longer term benefits. GP, as is clear from the CAFCASS report, is a resilient young girl who has had to adapt to much change. She is, sadly in many ways, better equipped to face disruption than some children of her age might be.

F has offered some financial support, albeit limited, to provide for assistance with accommodation if M and GP return to Italy. It is by no means sufficient. All are agreed that F has very limited resources. The transition will inevitably be uncomfortable and M will have to bear some of the costs. There are extant proceedings before the Italian Courts with a forthcoming hearing on 30^th June. Those Courts are well placed to survey and protect the full gamut of GP’s welfare needs and I am satisfied that adequate arrangements are available to secure the protection of the child on her return, as required by Article 11 (4) Brussells II R; X v Latvia [2014] 1 FLR 1135.

Mr Hepher draws my attention to Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as parties to appeal) [2015] EWCA Civ 26, which he submits and I agree, sets out the approach to be taken when considering this defence. The observations of Black LJ require to be set out:

It is now well established that there are two limbs to the child objections defence. It is necessary for the respondent firstly to show that: (a) the child objects to being returned; and (b) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views. If each of those first two “gateway” limbs is established the court then has discretion about whether or not to order a summary return.

In Re M (supra), the Court of Appeal reviewed the authorities on this point. Black LJ sets out the following as "tolerably well" established principles at §34 onwards:

Upon satisfaction of the ‘gateway stage’, the exercise of the Court’s discretion is then engaged. In Re M (Republic of Ireland) (above):

Ms Teresa Julian, the CAFCASS Officer, assessed GP’s maturity ‘to be broadly commensurate with her chronological age’. GP was very distressed when she met Ms Julian. I was told by Ms Julian in evidence that GP started to cry, quite suddenly and continued to do so throughout her interview. The crying stopped as abruptly as it began. Ms Julian plainly felt that there was a degree of artifice involved. She is also clear that GP had a strong allegiance to her mother and reflected some of her mother’s negative views about F and the paternal family.

GP has made allegations in relation to domestic violence. Ms Julian’s concerns about the reliability of the allegations are strikingly consonant with the findings of the Italian Courts and, she considers, are unlikely to reflect GP’s own memories. The CAFCASS report notes: ‘it is most unlikely that [GP] would have a conscious memory of an incident at 2 years old and would therefore need to have had it reported to her. That she is able to repeat it to me as a memory of her own is extremely worrying indeed’. It is also notable that GP has thrived in her English school and is obviously happy which does not support the level of distress that she asserts in her interview: ‘I would rather kill myself than go to Italy’. Ms Julian notes that after the interview GP was not at all upset and relishing the attractions of sight seeing in London.

In her interview GP said that she would like to meet the Judge. Ms Julian wrote the following letter which I repeat in full:

I agreed to meet with GP. Before I did so, there was discussion as to what the scope and ambit of the meeting should be. All sensibly agreed that I should not talk to GP about the case. Ms Chaudhry submitted that I should speak to GP only after I had arrived at my decision. GP was already present at court, I did not want to send her away and I was not sure whether a decision would be available that day. More importantly however, it strikes me as disempowering for a child to be spoken to by the judge conducting the hearing only after the case has been determined. It seems to me to undermine the whole purpose of seeing the child and trying to help her to feel included within a decision making process which has such an impact on her life.

I was referred to the Guidelines for Judges Meeting Children who are subject to Family Proceedings April 2010 and the Court of Appeal guidance In re KP (A Child) (Abduction: Rights of Custody) [2014] 1 WLR 4326. Moore Bick LJ observed as follows:

I found GP to be a striking and delightful young girl. I told her from the beginning that I knew exactly what her wishes were and so it wasn’t necessary for us to talk about it. She agreed to this with complete equanimity and seemed entirely reassured. She told me that I wasn’t what she was expecting. By this she explained she had anticipated a man in a long Judge’s wig. I told her that I wore one very rarely and brought it out of the cupboard for her to inspect. She was intrigued that it was horse hair and thought it rather scratchy and uncomfortable. I asked her what her favourite food was. She responded immediately by asking if she could select a ‘dessert’. I agreed and she told me with great enthusiasm that it was ‘panna cotta’. It had to be home made and by her mother. She has lived in England for barely more than a year, her English was faultless. It was also spoken without any trace of an accent. She volunteered that she found school in England to be much easier than in Italy. At 11 years old she is fluent in Italian, English and Latvian. Finally, she told me something of her plans for the day whilst we were in Court. She was smiling and poised throughout our meeting. As she left I said a few words of (tourist) Italian to her. She seemed delighted. She told me that Italy was a good place to go for a holiday but not to live. I told her that I would do my best to get the right decision for her but I was very clear that the decision was entirely mine.

I am entirely satisfied that GP is sincere in her expression of her resistance to returning to Italy. I am also clear that these views are coloured and influenced by her mother’s own wishes. The objections are therefore not wholly authentic. It is apparent that GP has been made aware of the issues at this hearing e.g. she stated in interview ‘if she (M) went back I think she would be in danger of going to prison’. The allegations made by GP against F are also conspicuously lacking in detail. I note that the Italian Court of Appeal made the same observations about M’s allegations. Though my meeting with GP was focused on respecting her wish to have some involvement in the process I observe that her remarks about Italy were not characterised by hostility. In this I see a reflection of GP’s comments to the CAFCASS officer:

Earlier GP had described Venice as ‘our favourite place’ by which she explained the ‘our’ to be ‘me and my mum’. This said, GP’s life has to date been characterised by upheaval and relocation. I have no doubt at all that her affection for England is both sincere and strong. She is obviously settled and happy. In addition GP is, to some extent, free from parental conflict in England. She is also, of course, deprived of her right to a relationship with F and the paternal family which the Italian courts have concluded was rooted in a ‘strong bond’. The information before this Court seems to me also to reinforce the Italian courts’ conclusion that M ‘created a situation where by she could keep the child under her exclusive control with the purpose of excluding [F] from any decision and contact’. More importantly, it is manifest that the Italian Courts, who have considered GP’s circumstance so carefully, are best placed properly to identify her welfare interests.

For completeness and in addition to my reasoning above I add the obvious. For The Hague Convention to have both legitimacy and efficacy, the principle of international comity, whilst not unassailable, must always be central to these applications. For the Convention to work, children who have been abducted by a parent (it is important to use that term) from their country of habitual residence must expect to be returned. A parent’s efforts to defeat that process require to be evaluated with healthy scepticism. As Black LJ says ‘there are no safe havens among contracting states’.

Accordingly, I reject Mr Hepher’s submission that there is a grave risk of harm to GP in an order to return made by this Court. For the reasons I have set out above I do not consider M’s risk of imprisonment, however that risk be calibrated, to carry the weight it is asserted on M’s behalf should be given to it. Whilst F’s undertakings, constrained by his financial circumstances do not ensure that GP’s ‘landing’ is as ‘soft’ as M would wish it to be, I am satisfied that it offers sufficient reassurance. I am encouraged that M agrees to accompany GP, and express the hope that she will, despite the history of her behaviour, use her best endeavours to minimise the upset to GP that my decision will undoubtedly cause.

At the end of the school term GP, because of her age, would be required to transfer to senior school. This natural hiatus provides a useful opportunity to ameliorate the impact of the return to Italy. I propose that this order should not be given effect until the end of GP’s school year. I have been told that there is a hearing in the Italian Courts listed on 30^th June 2017. I request that F’s lawyers provide that Court with a copy of this judgment by 20^th June 2017. To facilitate this I invite Ms Chaudhry to redraft her order to give it effect in the way I intend.