E (Abduction: Article 13b Deferred Return Order)

The substantive application before me is made by the father seeking an order requiring the return to Spain of his daughter, E, pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction [“the 1980 Convention”] which is given domestic effect in England and Wales by the Child Abduction and Custody Act 1985 and also as supplemented by certain provisions of Council Regulation (EC) No.2201/2003 [“BIIa”].

The First Respondent is the mother of the subject child. The Second Respondent is the child represented through a CAFCASS Guardian. The local authority currently accommodating the subject child, by reason of events which I explain in due course, is also represented in the proceedings but has not been joined as a party [“LA1”]. Additionally, E and her family also had involvement with another local authority before moving to Spain in July 2016 [“LA2”].

The issues which I am required to determine are as follows:

This case has fallen well outside the six weeks’ time limit for determination provided for in Article 11 of the 1980 Convention. It has also been beset with difficulties such as

In reaching my conclusions, I have read the following:

On 21 January 2019 I refused an application made by the father that I should hear oral evidence on the issue of habitual residence. I also refused an application that I should permit the father to give oral evidence about (a) the protective measures he offered to the court should E return to Spain and (b) his aggrieved feelings about the way in which he had been treated by the local authority. Instead, I directed that he should file a statement by the morning of 23 January 2019 limited to what those protective measures would be. A statement to that effect was duly produced.

I did hear oral evidence from Dr Teper, a consultant child psychologist, instructed to assist the court about E’s unusual presentation in her foster home and about contact issues. Following her evidence, Mr Turner QC made an application for these proceedings to be further adjourned in order that a consultant child and family psychiatrist be instructed to report on E and her contact with her parents. Criticism was made of Dr Teper’s report and assessment because she had failed to progress contact between E and her father and had failed to meet with either parent in defiance of an order made by me on 14 December 2018. I refused that application, giving a short ex tempore judgment on 24 January 2019.

I am extremely grateful to all the advocates who appeared before me. The quality of their submissions, both oral and written, helped me greatly in untangling some of the factual and legal complexities in this unusual case.

In proceedings as complex as these, I have been guided by the principles found in the 1980 Convention, set out by Baroness Hale and Lord Wilson in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144. In paragraph 8, they state that the first objective of the 1980 Convention is to deter either parent from taking the law into their own hands and pre-empting the result of any dispute between them about future upbringing of their children. If an abduction had taken place, the second objective was to restore the children as soon as possible to their home country so that any dispute could be determined there. Paragraph 13 makes clear that there is no provision expressly requiring the court hearing a 1980 Convention case to make the best interests of the child its primary consideration. Such proceedings are not proceedings in which the upbringing of the child is in issue but are proceedings about where the child should be when that issue is decided. Nevertheless, both judges stressed that the fact that the best interests of the child are not expressly made a primary consideration in Convention proceedings, does not mean they are not at the forefront of the whole exercise [see paragraph 14]: “…The aim of the Convention is as much to deter people from wrongfully abducting children as it is to serve the best interests of the children who have been abducted. But it also aims to serve the best interests of the individual child…”.

Paragraph 15 contains an important warning:

It will come as little surprise to learn that there were massive factual disputes between the father and the mother. The background to the proceedings was complicated and what follows is not intended to be a comprehensive summary. It is moreover not a recital of the facts about which I am satisfied on the balance of probabilities. Given the level of factual dispute, I have confined myself to finding facts which are germane to my decision on habitual residence (as to which, see the relevant section of this judgment). I have studiously avoided finding facts relevant to the Article 13(b) defence, save that I must come to a view about E’s presentation and needs in order to assess the defence in the way that the authorities signpost.

Furthermore, there was the added complexity of:

The father was born in Iran and, after the Iranian Revolution, came to this jurisdiction with his parents and older sister. He now has dual Iranian and British nationality and is 46 years old. He has a degree and worked in IT. He has a child, D, a boy now aged 14 from a relationship with a woman called K. After that relationship broke down, there was litigation in 2009 about D’s care resulting in D living with his father. I note that police records in April 2013 log an incident where the father was said to have broken into K’s address in order to collect some belongings. He allegedly pushed her before she asked him to leave which he did. The police took no further action in respect of this incident.

The mother was born in Russia and is now 42 years old. There is a factual dispute about how and where she met the father. The father says that he met the mother in London in 2005 when he engaged her services as a prostitute. The mother denies she worked as a prostitute and says that they met in 2005 whilst she was still in Russia working as a sales manager for a cosmetics company. Both agree that they began to cohabit at the end of that year/in early 2006. Although the father and the mother were cohabiting, the relationship was not sexually exclusive since the father continued to be involved with, if not also cohabiting with, D’s mother in 2005. In 2009 D came to live with the father and the mother in a house purchased by the father in LA2.

With some understatement I observe that, on each of their accounts, the mother and father had a tempestuous relationship almost from its inception. The mother alleges that, only after she started cohabiting with the father, did he tell her that he was a drug dealer. Though he was working as an IT consultant at the time, the mother alleged that the father was cultivating cannabis on a commercial scale with a variety of associates. There is some very limited support for this contention as, on 2 March 2007, the father was convicted under the Misuse of Drugs Act 1971 of cultivating cannabis and given a twelve-month supervision requirement together with an unpaid work requirement of 180 hours. The father’s statement dated 26 September 2018 asserted that he cultivated cannabis for his own personal use rather than on a commercial scale. However, in a police report of an incident between the mother and the father on 4 April 2014, the father was recorded boasting to officers about how he made his money through drug dealing and how cannabis was completely non-harmful as a drug. The mother also alleged that the father took cocaine each day and I note that the father’s statement dated 26 September 2018 contained an admission that the father occasionally used cocaine though he did not consider himself to be addicted to it.

The mother also stated that the father was physically and sexually violent to her from the outset of their relationship. On her account she was the victim of rape by the father on numerous occasions and contracted sexually transmitted diseases from him because the father was a regular user of prostitutes. The father was also said to have run an escort agency and brought women to this jurisdiction from Iran and Eastern Europe to work for him as escorts. The mother further complained of emotional abuse and asserted that E had witnessed this alongside the father’s physical abuse of the mother.

In 2009 the father met his present wife, V, and began to have a sexual relationship with her. V’s statement indicated that her relationship with the father began on the basis that the father had made a clean break with the mother. Her statement makes clear that the father confirmed this to her before they began their relationship. In contrast, the father says that he tried to finish his relationship with the mother after he met V but was unsuccessful in doing so. What is clear is that, as with the mother of D, the father continued his relationship with the mother at the same time as his relationship with V. The father accepted he married V in 2013, at a time when the mother was pregnant with

The father’s relationship with V appears not to have been without incident. On 5 November 2014 V called the police to report that the father had smashed a laptop in front of G. He is said to have admitted to officers that he was angry as V had discovered, on checking his emails, that he was going on holiday to Dubai with a girlfriend. He was recorded as leaving their flat briefly but returned when he realised that he had forgotten his passport. He could not gain entry so kicked the door open and left once he had retrieved his passport. V told officers that she was not assaulted or threatened at any point during this incident. Further, on 1 January 2017, the police were called to the home the father and V shared. Both the father and V were reported to have been drinking and had rowed. V was reported to have called the police after the father became verbally aggressive to her, fearing that he might also become physically violent. She refused to provide more details as she did not want to get the father into trouble. The father was contacted by the police and was described as being heavily intoxicated with slurred speech. He refused to tell officers where he was and said he had no wish to return to the family home.

Returning to the relationship between the mother and father, by 2011 the mother’s GP recorded that she seemed to be very depressed because of a poor relationship with violence. In January 2012 the police were called to the mother’s flat after she complained that the father was threatening to kill her and cut her up. The mother was described as upset, crying and clearly in a state of shock but she was adamant she did not want the father to be arrested. The officers found duct tape in the bathroom and the mother eventually admitted that the father had put duct tape over her face and mouth to stop her talking or screaming. She claimed that the father had raped her and strangled her but said she loved him. The father was arrested and denied the mother’s account. He was not charged as the mother refused to provide further information or support his prosecution. A further incident to which police were called took place in February 2012 when the father was alleged to have slapped, beaten and threatened to kill the mother.

E was born in January 2014. The mother alleged that two days before the birth, the father assaulted her. On 14 March 2014 the health visitor made a referral to LA2. She reported that the father was very dominating and would often answer for the mother. The mother later told the health visitor on the telephone that the father was verbally abusive to her. A few weeks later the mother said to the health visitor she was also a victim of physical abuse as well and was trying to leave the father. She told the health visitor that the father had hit her when E was about a week and a half old. E had been in her arms when this happened and was also hit on the head. Though the health visitor reported that the mother appeared to be very stressed physically and emotionally, she begged the health visitor not to refer the matter to the local authority as she was fearful

A Child Protection Case Conference took place on 17 June 2014 in LA2 and it was decided that E should be the subject of a child protection plan. D was not made the subject of such a plan as he lived in another local authority area but a referral to that authority was to be made in respect of D as well. The minutes of that conference recorded an earlier incident in when D had reported to his paternal aunt that the mother had exposed him to sexualised behaviour. The behaviour complained of is unclear but seems to have been the mother being naked in front of D. I note that a child protection investigation was undertaken by LA2 in 2012 in response to what D had said but concluded there were no concerns and the case was closed on 29 August 2012. A police report dated 15 July 2012 recorded, amongst other matters, the paternal aunt saying that D had told her of the mother pulling down her underwear and showing him her private parts. The police planned to interview D but the father refused to consent to this as he did not want D to be involved and to attend court. No further action was taken by the police.

Both the mother and father agreed with the 2014 child protection plan which stated, amongst other matters, that both parents were to stop their verbal and physical fights. Notwithstanding that aspiration, in October 2014 the father complained to the police that the mother had broken into the home he shared with V. He said she had made false allegations against him after she learned of his relationship with V. He said he had no contact with E and told officers about the child protection plan. He did not wish to pursue matters but just wanted his concerns about the mother’s alleged behaviour recorded.

A Review Child Protection Conference took place on 12 March 2015 although the minutes do not appear to be in the bundle. It appears that E was no longer thought to need a Child Protection Plan but did require a Child in Need Plan. E was said not to have seen her father since she was about 5 months old. There were no concerns about the mother’s parenting of E but it was thought the mother remained vulnerable because it had been difficult for her to let her past life with the father go. On 20 April 2015 the mother’s GP records stated that the mother had been severely physically abused by her ex-partner. She was said to have been hit multiple times to her face. The entry in the records also referred to a previous assault about two years earlier which had left the mother with facial bruising and other injuries. On examination the mother was said to be unable to smile fully or blow her cheeks and there was some drooping of the corners of her mouth. She was referred to a plastic surgeon by the GP. The incident which led to this consultation with the GP does not appear to have been reported to the police or to the local authority. On 28 July 2015 LA2 closed the case as the family were said to have moved abroad.

At about this time in spring 2015, the police records contain an entry in which the mother of D alleged that the father was physically abusive to the mother and had made threats to kill her and E on either 5 March 2015 or 5 February 2015. K said she had told the local authority of her concerns and had tried to persuade the mother to get help from the police. She also said that the father had been violent to her during their relationship. The police went to the father’s home and he confirmed that he had not seen the mother in over seven months and did not know where she lived. Eventually the mother was spoken to by the police and confirmed the account given by K which had been reported to her. She said she was very scared of the father though she had no contact with him and did not wish to take matters further. There is one further entry concerning D’s mother, K, in May 2015 which is found in the local authority records. She was reported to be the victim of a sexual assault by the father who she said harassed her and touched her private parts. She did not want to make a formal complaint or have him spoken to.

The father vehemently denies the allegations of domestic violence and claimed that the mother was physically abusive to him. He stated in his second statement that he knew she had a drink problem which made her aggressive and violent. Both he and V describe behaviour by the mother amounting to a campaign of sustained harassment once she became aware of the seriousness of the relationship between the father and V. V complained that the mother posted sexually explicit pictures of her (from her time working as a glamour model) to the father and to his friends and family. She is also alleged by V to have shown this material to D when he was a very young boy. On more than one occasion, the mother was also said to have entered the building where the father and V lived and gained entry to their flat where she destroyed personal possessions.

Following a period of comparative calm, on 4 February 2016, the local authority records noted that the father was referred to MARAC after it was said the mother had bitten him on his stomach. This followed a complaint by the father to the police in December 2015. The father was also said to have showed police videos he had taken of the mother being very drunk whilst caring for E. The mother was arrested later in February 2016 for being drunk in charge of E after the father visited her home and found her slurring her words. She fell and the father rang the local authority who then called the police. E was placed in her father’s care following this incident. A local authority record dated 9 March 2016 noted that the father had, at some point, told police officers that E and her mother were in Russia and would return at the end of the month. He was later recorded to have said to social workers that he did not know where the mother and E were and to have been verbally abusive and threatening. On 5 March 2016 the mother called the police after the father allegedly took E’s passport. She appeared to police to be drunk but she made no claim that she had been assaulted by the father or that she was in fear of him. The police took no further action as it appeared to them that both parents were calling the police for any minor disagreement, the purpose being to log evidence against each other to gain custody of E. There was said to be a family court hearing on 22 April 2016.

On 8 March 2016 the father and his sister signed a written agreement with LA2. This recorded concerns about (a) E being at significant risk of harm whilst the mother was under the influence of alcohol and (b) that the father had been staying at the mother’s home address when, given the history of severe domestic violence, it was not considered safe for the parents to be together. The father agreed (a) to live at his sister’s

An undated risk assessment of the father, completed at some point between the written agreement being signed and the referral for supervised contact, was positive. It stated that, as he had no convictions for violence, the current risk of harm was low in relation to him caring for E. However, it was thought this risk would increase significantly if the mother and father were alone together. He was said to be a risk to women but not to a child. He was noted to have acted protectively by reporting his concerns about the mother and caring for E. Positive interaction was observed between the father and E – she did not appear frightened of him and went to him for comfort and affection. The father agreed to attend a parenting course and attend the Caring Dads programme and recognised that he should work with the local authority.

During the assessment, the father stated that he was not happy with V’s attitude to E whom he described as very protective over their son, G. He said E was his priority and if V could not come to terms with E living with him, he would live separately from her and may need to divorce. He denied hurting E as alleged in 2014 but admitted hitting the mother in retaliation after she hit him several times in the face. He said they had many arguments but that most of the allegations had been fabricated. He accepted that he had not seen E for nine months after the initial Child Protection Conference in June 2014 which had really upset him. Though committed to caring for E, the father wanted her to live with her mother if her mother could stop drinking. He had taken E to see her mother four times in the previous fortnight at various play areas and reported that the mother had not been drinking for a fortnight.

On 13 April 2016 LA2 sent the father and the mother a letter before care proceedings. This invited them to a meeting on 19 April 2016 and warned that if they did not cooperate, LA2 would begin care proceedings to protect E. The letter noted that the agreement signed on 8 March 2016 was terminated very quickly as the local authority in the area where the father’s sister lived had advised that he should not stay at her address with E. LA2 listed various things the father was expected to do in order to avoid care proceedings, including attending a parenting course and a course aimed at preventing further abusive behaviour towards partners. He was not to permit E to have unsupervised contact with her mother when her mother was drunk. Both parents attended the meeting on 19 April 2016 with their respective legal representatives and agreed to E having supervised contact with the mother. The mother agreed to attend alcohol counselling and domestic abuse support groups and the father agreed to attend the Preparing to Change Programme. The father also agreed to apply to the court for a child arrangements order and to ensure E did not have unsupervised contact with her mother. On 22 April 2016 the mother was convicted of being drunk in charge of a child and given an 18-month conditional discharge.

LA2’s records indicated that little came of the programme required of the parents.

Border Agency checks recorded that on 24 July 2016 E travelled on Eurostar to France but there also appeared to be a trace of her boarding a ferry with her mother from Dover to France. E and her mother were said to be in Spain on 27 July 2016. The mother alleged that she made the move to Spain under duress from the father.

The family lived in a number of rented houses in Spain, the mother alleging that the father failed to pay the rent on time and left her to deal with the landlords who would demand payment from her. In August 2017 the mother sent texts to the father saying she was stressed, lonely, needed a car and money and wanted to go to the dentist. In November 2017 D joined the family in Spain and started going to school. In her statement dated 9 October 2018 the mother alleged that the father raped her in November 2017 when E was present.

Whether or not the move to Spain was intended to be a fresh start, by March 2017, the father was making enquiries of the Foreign and Commonwealth Office [“FCO”] in order to obtain a passport for E. LA2’s records indicated that this request was prompted by a domestic incident between the parents and that the father wished to return with E to the UK. He told the FCO in an email that E’s life was in danger if she was allowed to return to her mother whilst her mother was “in this state”. He threatened to take E to Iran if he was prevented from obtaining UK travel documents and said he wanted the UK authorities to be involved so they could be sure E was being looked after. The FCO refused to issue travel documents without the mother’s consent and made a referral to LA2 which included details of the father’s address in Spain. Upon learning of the father’s address, LA2 contacted the Spanish local authority in whose area E resided to alert them to their concerns about the family and to ask for a welfare visit to be made to E. LA2 also made contact with the father who told them he was willing to work with LA2 to keep E safe and sent them some videos of E and her mother. It is not entirely clear what the father sent though, in an email sent to the FCO, LA2 considered that the videos had been highly edited. LA2 informed the FCO that it was really worrying to see the father filming the mother in this state with E present which suggested that neither parent was putting E first. LA2’s records from 2014 indicate that the father showed the social worker a video in which the mother appeared to be masturbating but it is wholly unclear if the video material sent to LA2 in 2017 was the same as the 2014 video or something entirely different. The FCO informed LA2 on 17 March 2017 that social services and the police in Spain had been asked to undertake a check on the family and the FCO maintained its refusal to issue travel documents as requested by the father.

A report from Social Services in Spain confirmed that the father had approached them in April 2017 to inform them about the “negligence and abandonment” being experienced by E. He said he had separated from the mother and had two children with another partner who was residing in England. Spanish Social Services advised the father to seek custody of E via the court. During the meeting the father said he had to travel to Iran and that the mother would be caring for E whilst he did so. Following the father’s visit, Spanish Social Services tried to visit the mother and E without success. They were eventually told by a maintenance person that the mother was no longer living at the address provided by the father.

On 22 November 2017 the father travelled to Iran, planning to return on 25 January 2018. On 19 December 2017 the mother was arrested by Spanish police for an alleged sexual assault on D. The mother is alleged to have forced D to touch her sexually and forced him to have vaginal intercourse with her. She was bailed on 20 December 2017 when a restraining order made by the Spanish court prohibited any contact with D. On 21 December 2017, the Spanish court, of its own motion, made an order for Spanish Social Services to protect E though, somewhat surprisingly, she remained in her mother’s care. A police report dated 20 December 2017 referred to the conditions in the mother’s home as being untidy, unhygienic and smelly when she was arrested. After the father’s return to Spain, Social Services interviewed both parents following the court’s referral. The mother denied problems with alcohol and alleged that the father had subjected her to physical and psychological abuse. She said she had not reported this as she feared he would take E to Iran. She said the father was taking drugs and drinking alcohol. She described herself as being financially dependent upon him. The Social Services report does not detail the interview with the father but recorded that contact had been made with his lawyer in December 2017 who said that no application for E’s custody had yet been made. Social Services later visited the mother’s home and agreed with the mother what she should do to make it clean, tidy and habitable. The last home visit established that the property had improved in terms of cleanliness.

The father returned to Spain on 24 December 2017 and made efforts without apparent success to see E who was still living with her mother. His first statement recorded that he saw E about three times after his return to Spain and that the mother kept making excuses to prevent him seeing E. In December 2017 the father began proceedings in the Spanish court with respect to E and that court accepted jurisdiction on 17 January 2018 and listed an inter partes hearing on 17 April 2018. It is noteworthy that the father was, at that point, suggesting that the mother have staying, unsupervised contact with E. On 7 February 2018 the father discovered that the mother and E had moved out of the Spanish property and reported the matter to the Spanish police. It transpired that the mother and E had flown to this jurisdiction on 29 January 2018 to stay with D’s mother, K.

Parallel with the children proceedings in Spain, the mother made a complaint to the domestic abuse court on 28 December 2017 in respect of the father’s behaviour to her and sought a protective order against him. That order was refused on 29 December 2017 on the basis of the prosecutor’s submission that there was no objective situation of risk for the mother. The mother appealed the court’s refusal and a chronology of alleged abuse was produced to the court by the mother’s lawyer on 8 January 2018 which included allegations that the father would beat E when he thought she had behaved badly. On 27 June 2018 the appeal court dismissed the mother’s appeal and any further investigation by the criminal court into the mother’s allegations against the father came to an end on 12 July 2018.

On 5 September 2018 the criminal court in Spain issued a European Arrest warrant for the mother’s arrest because she had absconded and was no longer resident in Spain. She was charged on 8 November 2018 with a sexual assault on D. There are extradition proceedings afoot in this jurisdiction for the mother to be returned to Spain in order to stand trial. The mother denies that she sexually assaulted D and claims that this allegation has been fabricated by D on the instruction of the father. She is resisting her extradition to Spain. The extradition proceedings have been adjourned to a hearing listed on 4 April 2019.

The father’s application for custody of E was granted by the Spanish court on 6 September 2018. Parental responsibility for E was to be shared by her mother and father and she was to live with her father and have supervised contact with her mother at a contact centre on alternate weekends. The mother was not present at the hearing and has not appealed this court’s decision.

On the mother’s return to this jurisdiction, she and E stayed with D’s mother, K, for a few weeks but left after K’s kitchen window and car window were smashed. Because of this, the mother said she was worried that the father might have found out her location and, on or about 28 February 2018, she and E moved out to live in a succession of different refuges.

On 22 June 2018 LA1 received a referral from a third local authority expressing concerns about the mother’s care of E. These included: frequent changes of address; the mother’s poor mental health; E’s poor diet and inability to eat solid food; E’s exposure to domestic violence; and the mother’s inability to provide stimulation and behavioural boundaries. The mother herself alleged to social workers that D used to masturbate in front of E. LA1 undertook a child and family assessment which resulted in E being placed on a Child in Need Plan. The mother did not tell the local authority about the criminal proceedings in Spain and it was not until 30 August 2018 that this information was made known to LA1 by the police. As a result, E was removed from her mother’s care on 31 August 2018 and placed with foster carers. The mother agreed to E being accommodated pursuant to section 20 of the Children Act 1989 but she withdrew her consent for that placement in mid-September 2018. On 18 September 2018 Baker J (as he then was) made an interim care order in favour of LA1. LA1 issued care proceedings on 20 September 2018 which were stayed by my order dated 18 October 2018. E remains the subject of a protective measure pursuant to section 5 of the Child Abduction and Custody Act 1985 [“CACA”] which has placed her in the interim care of LA1.

On 28 June 2018 a worker at the refuge where the mother and E were living contacted LA1 to advise that another resident in the refuge had reported that E had told her that her brother used to put his fingers in her vagina. The resident made a handwritten note of what E said which recorded that E had spontaneously stated her brother had touched her bum and gestured with two fingers behind her bottom. The resident spoke to the

E has remained in the same foster home since 31 August 2018. She has had regular contact with her mother at a contact centre which is supervised. Unfortunately, it has not been possible for E to resume contact with her father for reasons which will become apparent later on in this judgment.

The mother’s mental health was thought to be fragile and on 13 September 2018 Baker J (as he then was) ordered that the mother undergo a psychiatric assessment. The report of Dr Kolkewicz dated 25 October 2018 concluded that the mother was suffering from (a) a mental and behavioural disorder arising from the use of benzodiazepines; (b) posttraumatic stress disorder; and (c) a severe depressive episode without psychotic symptoms. Her symptoms were of a severity that impaired her day to day functioning, including her parenting, to the extent that she was then unable to accompany E to Spain unsupported if an order were to be made for E’s return. However, the mother’s legal representatives became concerned about her apparent unwillingness to give them instructions and on 19 October 2018 I approved the instruction of Dr Kolkewicz to assess the mother’s capacity to litigate these proceedings. Dr Kolkewicz’s report dated 9 November 2018 concluded that the mother’s presentation had altered since her last assessment of the mother on 17 October 2018. The mother was now showing a range of psychotic symptoms including persecutory delusional beliefs (a) that the father’s friends were driving past her house to laugh at and torture her and they were tooting their car horns to signal that they knew everything; (b) that social workers and lawyers in the case were being bribed by the father; (c) that the father was forging the statements being used in the proceedings; and (d) that the father was using black magic against her and others. Dr Kolkewicz considered these beliefs to be well systematised and to interfere with the mother’s ability to believe what was said to her by professionals and others involved in the proceedings. Additionally, the mother displayed signs of formal thought disorder which worsened when she felt anxious or under pressure. Dr Kolkewicz concluded that the mother had developed a paranoid psychosis in addition to the mental health problems identified in the earlier report dated 25 October 2018. The symptoms of this disorder meant she lacked the capacity to conduct the proceedings. With appropriate treatment, she had the potential to regain litigation capacity. In consequence of Dr Kolkewicz’s conclusions, the Official Solicitor was appointed by me to act as the mother’s litigation friend as there was no other suitable person who could so act.

In my order dated 14 December 2018, I directed Dr Kolkewicz to provide an updating report on the mother’s litigation capacity, her capacity to make a witness statement and to give oral evidence at the substantive hearing fixed to commence in January 2019. Rather later than anticipated, Dr Kolkewicz provided a report dated 17 January 2019 which concluded that the mother’s symptoms of depression had significantly decreased; the symptoms of thought disorder, though still present, had reduced in intensity; and her persecutory, delusional beliefs were less extensive and held with less intensity. Thus, the mother had regained litigation capacity though this status was described as fragile. Her improvement had been driven by a recent move to another area rather than by taking anti-psychotic medication (which she had not commenced). Her capacity to conduct the proceedings would be strengthened and be less likely to fluctuate if she were to take anti-psychotic medication. In the light of this report, I discharged the Official Solicitor from acting as the mother’s litigation friend at the start of the substantive hearing on 21 January 2019.

The father issued his application for the return of E to Spain on 18 April 2018. Despite the making of a location order, the mother and E’s whereabouts were not ascertained until 13 July 2018. Notwithstanding Article 11.3 of BIIA which provides that proceedings to which BIIA applies must be completed within six weeks except where exceptional circumstances make this impossible, the determination of the father’s application has been substantially delayed. The first final hearing was due to take place on 14 September 2018 but this was adjourned on 31 August 18 when E was placed in foster care and the mother was arrested. The second final hearing was then listed for 25-26 October 2018. On 13 September 2018 the final hearing was once more adjourned and listed on 5-6 November 2018 in order to allow Dr Kolkewicz to prepare a psychiatric assessment of the mother. On 31 October 2018, when it became clear to the mother’s legal representatives and to this court that it was necessary to assess her litigation capacity, the final hearing was once more adjourned to 20-23 November 2018. On 13 November 2018, when it became clear that the mother lacked litigation capacity and required the Official Solicitor to act as a litigation friend in the proceedings, I adjourned the final hearing to 21-25 January 2019. Thus, final hearings in these proceedings have been listed on no less than five separate occasions.

On 11 September 2018 E was joined as a party to the proceedings by Baker J (as he then was) and she has been represented by CAFCASS Legal through her Guardian, Mrs Kay Demery.

On 24 July 2018 Hayden J ordered the mother to make E available for video contact with her father once a week. This contact was to be facilitated by the mother’s social worker or another independent person arranged in consultation with the social worker. There were difficulties in identifying a suitable person and the mother sought assurances from the father and his legal representatives that her location would not be disclosed to the father. By an application made on 15 August 2018, the father sought enforcement of the order for video contact as no such contact had taken place. On 4 September 2018 Russell J directed the Cafcass High Court Team to make enquiries of LA1 as to its position in relation to contact between E and her father. By the time of the hearing before Baker J on 13 September 2018, the local authority was said to be considering the father’s wish to have Skype contact with E.

These proceedings were allocated to me by Baker J on 13 September 2018 and I have conducted all subsequent hearings, the first being on 19 October 2018. At that hearing I directed that, if the father sent to the local authority a card containing a simple message for E and, if he so wished, a video recording of himself alone directed to E, the local authority should show such of that material to E as was, in the professional opinion of the relevant social worker, deemed to be appropriate. I directed that a report on E’s reactions to this material should be served upon the parties to the proceedings. This staged approach to the reintroduction of the father’s contact was influenced by the local authority’s statement dated 17 October 2018 which described E as a much traumatised child who was smearing faeces in her foster home; crying for no apparent reason; sobbing and saying “I’m sorry, I’m sorry”; and suddenly switching from tearful and

The father sent a card to E which was shown to her and two video recordings, one of which was shown to her. A statement from the allocated social worker dated 12 November 2018 indicated that E showed little reaction at the time to seeing the card from her father. However, over the weekend, E smeared faeces once more. Though initially smiling when shown the video of her father and saying that she would like to speak to him on a video and tell him that she loved him, E had subsequently refused to play in the playroom which was where she had viewed her father’s video and had spoken to her foster carer about concerning behaviour between her parents and concerning behaviour between her and her father. On 21 November 2018 I approved, with the agreement of all the parties, the instruction of a child psychologist, Dr Teper, to provide an initial assessment of E’s current psychological functioning and her emotional and therapeutic needs together with an assessment of the impact upon her of her experiences to date. In addition, Dr Teper was instructed to advise about the nature and frequency of contact (direct and indirect) between E and her parents and, if it was her view that contact between E and her father should be restarted, how that might best be managed. Dr Teper was directed to provide an interim report for the court hearing listed on 14 December 2018.

On 14 November 2018 I gave a short judgment on interim contact between E and her parents. In summary, I accepted the view of the local authority and of the Guardian that E presented as a highly vulnerable child whose experienced foster carer described her as the most traumatised child she had cared for. Though she had achieved some stability in the foster home, I considered it to be desirable that there were as few changes as possible to E’s circumstances. There was evidence that contact between E and her mother had been less beneficial for E than it ought to have been. The mother had often been late for contact and had missed contacts without warning. Her persistent focus on providing food and feeding E was to the detriment of her interaction with E. Latterly, E herself was asking if it was time to go well before the contact with her mother had ended. Though it would be a change, I decided that contact between E and her mother should reduce from three times each week to once a week. Turning to the contact between the father and E, I decided that the best way forward was to invite Dr Teper to report on contact prior to the December hearing. I considered it would be helpful if the father wrote another card which Dr Teper could explore with E and provided another video which could also be used by Dr Teper when she assessed E. The father had provided a toy which might also be a means of assessing whether contact between E and her father could be reintroduced. It was for Dr Teper to use her common sense to decide how to deploy this material in coming to her view about contact with the father.

Dr Teper produced an interim report on 10 December 2018 which described E’s presentation as fragile. She recommended that no changes were made because maintaining stability for E must be prioritised given her troubling behaviours and the need for considered assessment. In an email dated 13 December 2018 Dr Teper noted that, following her first session when she had asked E questions about her family, E had smeared faeces once more. I note that smearing faeces was a behaviour which had, by then, decreased in frequency during the time E had been in foster care. Dr Teper wondered whether the smearing behaviour might have been a reaction to questions

At the hearing on 14 December 2018, I adjourned the father’s application for immediate face-to-face contact with E making it clear that direct and/or indirect contact was permitted at the discretion of Dr Teper if she considered the same to be appropriate. I directed that Dr Teper should meet with the father for the purpose of enabling her to obtain such further information as might assist her to answer the questions raised within her letter of instruction. Following the hearing, Dr Teper expressed reservations about meeting only with the father, and I indicated in an email to the parties on 21 December 2018 that, if Dr Teper felt she needed to meet with the mother as well as with the father to report on E’s needs, she should do so. I made it clear that I expected Dr Teper to be in a position to provide assistance to the court in January 2019 about E’s needs including her need for contact with both her mother and her father.

I address the contents of Dr Teper’s substantive report below when I consider the Article 13(b) defence raised by the mother and on behalf of E.

There is no need for Art 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of Art 13 are quite plain and need no further elaboration gloss.

The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process.

The risk to the child must be ‘grave’. It is not enough for the risk to be ‘real’. It must have reached such a level of seriousness that it can be characterised as

The words ‘physical or psychological harm’ are not qualified but do gain colour from the alternative ‘or otherwise’ placed ‘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’.

Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. 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 (where, as in this case, Art 13(b) of BIIa applies, the court cannot refuse to return a child on the basis of Art 13(b) of the Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return). Where the risk is serious enough the court will be concerned not only with the child’s immediate future because the need for protection may persist.

Where the defence under Art 13(b) is said to be based on the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but 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 court will look very critically at such an assertion and will, among other things, ask if it can be dispelled. However, in principle, such anxieties can found the defence under Art 13(b).”

risk to E herself which may manifest itself if I were, without more, to make an order for her immediate return to Spain.

For the reasons I identified earlier, E’s relationship with her father is more complex and less positive than Mr Turner QC suggested and, in my judgment, is not a firm foundation at this time for any move to her father’s care. E would furthermore be at great risk of significant developmental harm on Dr Teper’s evidence, having been separated from her foster carer at what is a crucial stage in her emotional and psychological development and placement with her father, however well-managed, would not be enough to redress that harm. Put simply, E would be in an intolerable situation which she should not be expected to tolerate.

Its ambit was considered by the Court of Appeal in Re A (Abduction: Interim Directions: Accommodation by Local Authority) [2010] EWCA Civ 586 [see paragraph 38]. In summary, Thorpe LJ concluded that the language of section 5 and the construction of that language needed to be extensive in order to achieve the objectives of the 1980 Convention and to safeguard the welfare of children whose vulnerability is generally magnified by the effects of abduction. Singer J in the earlier case of Re C (Abduction: Interim Directions: Accommodation by Local Authority) [2003] EWHC 3065 (Fam) came to the same overall conclusion that the powers contained in section 5

were very broad and were to be used in the interim pending the determination of the 1980 Convention application [see paragraphs 14 and 15]. In each of the aforementioned cases, the court used section 5 of CACA to require a local authority to provide accommodation to a child.

In BK v NK (Suspension of Return Order) [2016] EWHC 2496 (Fam) MacDonald J considered the power to stay or suspend the operation of a return order pending steps being taken in the court of the child’s habitual residence, which steps may result in the child not returning to the jurisdiction of habitual residence. He noted this was a power to be exercised only in exceptional circumstances.