A (Hague Convention: Wrongful Retention)

The applicant is the father, and the first respondent the mother, of the second respondent child, whom I shall call A, who is represented by her Children’s Guardian, Ms Baker. The child lives with her mother in England. The father alleges that the mother wrongly removed or retained the child from the Russian Federation, her country of habitual residence, and applies for her summary return under the 1980 Hague Convention. The mother opposes the application. The issues for the court to determine are the date of wrongful removal or wrongful retention, habitual residence, settlement, the Article 13b defence of grave risk of harm, and, if relevant, the exercise of the court’s discretion whether or not to order return. In relation to the issue of wrongful retention a question to determine is whether, when parties have agreed to the retention of a child abroad for an identifiable period of time, and the left behind parent resiles from the agreement and demands the return of the child before the expiry of that period, the refusal or failure of the travelling parent to comply with the demand renders the child’s retention wrongful at that time.

The brief history is as follows. The father has dual Russian and Moldovan nationality and the mother is Moldovan. The parties met online whilst the father was working in Germany and the mother was studying in the Russian Federation. They began a relationship and the mother became pregnant with A. The father moved to Russia. A was born there on 31 May 2014. The parties dispute the nature of their relationship over the ensuing few years but agree that the mother left with A for Moldova on 26 April 2018. The father followed approximately a month later. On 12 June 2018 the father signed a formal consent document by which, on the face of it, he consented to the mother removing A from Moldova “to all countries of the European Union and Great Britain from 12.06.2018 to back 12.06.2019”. This document was prepared by a notary and states that it was orally translated by the notary into the Russian language for the benefit of the applicant. The mother arrived in England with A on 8 July 2018 and they have remained here ever since. Her parents both live here. Contact between the father and A continued but soon diminished and then ceased. On 20 January 2019, in response to attempts by the father to contact her and A through the Moldovan Police, the mother wrote a letter to the Moldovan Police, witnessed by a solicitor in Leeds, stating that she and A were alive and well, and that A was attending school. She confirmed her location but asked them to keep it confidential from the father. She attached documentation and a video. Although it does not say so in terms, the mother says that the letter “made it clear that we had no intention of returning” [C57 para. 84] and the father agrees with that characterisation of the letter. The father lodged an application for return of A to Russia to the Russian Central Authority but not until May 2020, and the application in this court for return was issued on 14 October 2020.

The father’s case is that the mother wrongfully removed A from the Russian Federation on 26 April 2018, and then either wrongfully removed her to this jurisdiction on 8 July 2018 having never had any intention to return her upon leaving, or wrongfully retained her here at the end of August, alternatively in October 2018, or in the further alternative, on 20 January 2019, the date of her letter to the Moldovan police.

The mother defends this application on the following grounds:

At the hearing the mother sought to amend her defence by adding a further element, namely, the child’s objections. This application followed the receipt of the Guardian, Ms Baker’s report of 7 April 2021. I refused that application. The defence relied upon appeared to be very weak: the child is only six years old and did not express her views about return to Ms Baker in a reasoned manner. The application was made very late and without giving the father a fair opportunity to address it in advance of the hearing. Ms Baker’s report had not directly addressed the question of the child’s objections and her maturity and understanding. Further evidence would therefore have been required, causing delay. The mother has been represented by experienced solicitors and counsel throughout the proceedings. During the hearing it transpired that there are issues about influence on the child by the parents which would have necessitated further evidence in relation to her objections had the defence been allowed.

In this judgment I shall set out the background in more detail, provide the legal framework for the decisions of the court, comment on the Guardian’s evidence, evaluate the evidence and give my conclusions on the issues to be determined.

The parties had only met a few times when the mother became pregnant with A. She alleges that when she informed the father of the pregnancy he told her that he had been diagnosed with leukaemia and strongly urged her to have an abortion. She says that later he told her he had spoken to her parents and they had asked him to force her to have an abortion. Neither assertion was true. The mother’s mother gave the father money to ensure that the birth took place in a private hospital but, the mother alleges, he kept the money and her labour care was chaotic. Eventually she had an emergency Caesarean section. The mother says that after the birth she struggled to find suitable accommodation and that the father was no help. Again, her mother handed over a large sum of money and the father largely kept it for himself. The mother says that she was responsible for nearly all the childcare and the father would lose his temper if his sleep was disturbed by their new baby. The father disputes the mother’s account of his conduct during this period.

The mother returned to her degree in 2015 and completed it in 2016. She says that during this time they had little money and the father was very controlling:

“[The father] had full control over absolutely everything throughout the course of our relationship. He held mine and A’s documents. My phone number was registered to his name so he had access to my call logs. Our home was in his name. He had access to my hard drive, and as a result, access to all my photos. He knew all my passwords. He monitored my conversations, my searches and essentially, my entire life. It transpired that [the father] was watching my every step from the very beginning. [The father] would fall out and have disagreements with my family and with my friends, which meant that I was slowly becoming isolated from everyone. I always tried to avoid conflict, which came at great personal cost.

We argued frequently. Every time I tried to disagree with [the father], or stand up for myself, he would show me the door. There were many occasions where he would pack my things and leave them outside the front door.” [C44]

The father disputes this and says that the mother lived a “rather nomadic existence” during this time and would disappear for days at a time, staying overnight with female friends. He was left caring for A. He says that he organised a nursery for A and he took her to and from the nursery – the mother was little known to the staff there.

The mother says that the father insisted that his name alone appeared on correspondence and documents and then he threatened to kick the mother out of the home and separate her from their daughter. She says that she was on edge and terrified, and she blamed herself for everything that was going wrong. From late 2016/early 2017 she alleges that the father became physically violent. “He would get angry, grab me, pin me down, hit me on the head and on occasion, try and choke me.” She says that she had nowhere else to go and felt she had to stay in the relationship. Nevertheless, she did spend two months with A with her family in Moldova in late 2017/early 2018. Again, the father disputes the mother’s account in full.

The mother says that on 10 March 2018 the father attacked her, pinning her down and choking her. “He said he will murder me … I started to fight for my life, I clawed at him, tired to push him off, did everything in my powers to fight back.” The police attended the house having been called by neighbours but neither party made a complaint. The mother exhibits a photograph of bruising to her arm and says that other photographs of extensive bruising did not come out. The father says that the mother attacked him and exhibits photographs showing quite extensive bruising and marks to his body including what appear to be scratch marks and a bite mark. He accepts that neighbours alerted the police and that A was present. The mother says that A witnessed the father attacking her and tried to “get in the middle of us.” The father does not accept that.

The mother says that in January 2018 she received a letter from her grandmother in Moldova asking her to come to her. She says that she was worried about her grandmother but the father would not let her travel to Moldova. Following the father’s deteriorating behaviour, she decided to travel to Moldova with A and she informed the father from Moscow once she had embarked on the journey on 26 April 2018. She did not ask for his agreement in advance. The father’s case is that he did not know where his partner and child had gone and he went to the police to report the matter but the mother called him the next day. He travelled to Moldova and stayed for about a month. He tried to persuade the mother to return with A to Russia. The mother then told him that her mother, who lived with her father in England, was seriously ill and she wanted to visit her with A. The mother’s father had travelled to Moldova and whilst there he spoke with the father who ultimately consented to the mother taking A abroad. He says that the maternal grandfather arranged for a notary to prepare a formal consent document and that he signed it on 12 June 2018. He says “Russian is my first language and I don’t read and write Moldavian … I accepted it in good faith and signed it because I felt sorry for [the mother] and I trusted her father. I seriously misjudged them both.” The mother says that the father gave his consent to A travelling abroad for a year only after a series of meetings in cafes with her and her father. The father agreed to the terms set out in the formal consent document which he signed in front of a Notary on 12 June 2018 [C11].

The father produces a statement from a friend KY about a later visit they both made to the notary in 2019. At the meeting with the notary it is alleged the notary told them that in 2018 the mother and her father had tried to forge a document to allow them to take the child from Moldova and when that did not work, then “tricked [the father] to signing the permission”. In short, his evidence is that the notary (or notaries – two are mentioned) confessed to taking part in a fraud on the father.

After the father signed the formal consent document, the mother left Moldova with A to travel to England arriving on 8 July 2018. She was accompanied by her father and brother. They initially stayed in her parents’ apartment, her brother moving out to accommodate them. A was registered with a GP on 9 August 2018. On 11 September 2018 A started at a Primary School, settling in quickly and picking up the language. On 21 December 2018 the mother and A moved to a new address in the city of X to live

The mother contrasts A’s demeanour and happiness in England with the rather quiet and often sickly child she was in the Russian Federation. She says that A made a very good friend with another little girl who was the grandchild of friends of the mother’s parents, in the Spring of 2019. A’s grandparents and uncle play significant roles in her life. The mother herself has taken various qualifications since arriving in England and has obtained a job at a local cleaning company.

Indirect contact with the father took place in the first weeks after A’s arrival in England. The mother says that the father was very difficult and started to demand information such as their address in England which she did not want to provide because she was worried about safety in the light of his previous abusive conduct towards her. She found that dealing with the father about contact triggered troubling, fearful feelings about him. She allowed contact with A to continue until she became convinced that the father was using contact to manipulate the mother – he would talk to A about court documents, knowing the mother could hear him. She ceased direct communication with the father herself after a few weeks, and she terminated contact between A and the father when he told A that he would come and take her away from her mother. The father denies that he said any such thing. He says the mother terminated contact in October 2018. The mother is unsure but believes it was a little earlier. The mother says that she was aware after cessation of contact that the father was writing to her family to try to find out her address and, she says, to malign her.

The mother says that the move to a new home in late 2018, “was symbolic …. it was clear by that stage that we would remain living in England … we settled in so quickly and I knew that this is where we belonged and where we should live. My entire family was in England. The only family I had in Moldova were my two aging grandmothers. I had no one at all in Russia.” [ C53]. The mother became aware that the father had asked the Moldovan police to locate her and A. She regarded this as more threatening and manipulative conduct by the father. She corresponded with a Moldovan police officer and then on 20 January 2019 sent a letter with accompanying documents and video to the Moldovan police, the letter being witnessed by a solicitor in X. She gave her previous address but asked that her address be kept confidential from the father. In fact, the Moldovan police passed on information including her previous address to the father. At this point, the mother says, and it is accepted on behalf of the father, the mother was manifesting an intention permanently to stay with A in England and not to return within twelve months of the father’s consent document, namely by 12 June 2019.

As noted, the application in this court was issued on 14 October 2020. Indirect contact was reinstated, initially as audio contact only, and more recently video contact. Unfortunately, Ms Baker, Guardian, has only observed the very end of one contact session. On 2 February 2021 the case came before Ms Justice Russell who was informed that the father had been recording contact sessions without the knowledge or consent of the mother or the court. She forbade the parents from recording any contact session or discussing these proceedings with the child. The father was ordered not to denigrate the mother or any member of her family to the child.

Ms Baker produced her report on 7 April 2021. She saw A twice in January 2021 when A told her about witnessing the father assault the mother when they were together as a family in Russia. She also reported that the mother and members of the maternal family had told her that the father had caused the death of his own mother and that he had kept

On 25 March 2021 I dismissed the father’s application to rely on these recordings as evidence at this hearing. I did so because they had been made covertly and the father had sole control over what was recorded and could have steered recorded conversations with his child to suit his purposes. Hence, the evidence would be of very little weight. Further, the use of covert recordings, including of contact with a child, was a breach of trust with the child and the other parent and should be strongly discouraged by the court.

Ms Baker arranged with the father remotely to observe his video contact with A on 13 April 2021. She stood by with an interpreter ready to observe but was never sent the link to enable them to do so. The father puts this down to technical problems. Ms Baker accepts that she was having some technical issues with her emails that day. The contact session went ahead and it is reported that, for the first time at a contact session, A talked about her experience of domestic violence by the father against the mother and became upset. Following the contact on 13 April 2021 the father wrote irate emails to Ms Baker. At 1620 hours on 13 April 2021 he wrote:

“All contacts were very good until today. Today, A told me everything I read in your report. She told me all this for the first time! A never talked to me about it before. And today she cried.

It was obvious that A was forced to say it all. A doesn’t remember anything from childhood. But by some miracle, today for the first time decided to talk to me about this. I am glad that the Russian psychologist was present at each of our contacts, and today too. She’ll prepare her report.”

Obviously [the mother] uses A to make her say a lie. My audio recordings prove this and the report of a Russian psychologist, I hope, will also contain this.

I didn’t know how to reassure A and told her that I loved her and that she wasn’t guilty of anything and that I knew the truth…”

In her evidence the mother denied prompting A as alleged. She said that A had been upset that her father had contested something A had said about a piggy bank she had had when they were together in Russia. This appeared to have caused A then to speak about other past matters involving the father. I make no finding in this judgment about whether either parent prompted A to talk about past episodes of violence involving the father at the contact session on 13 April 2021. I understand that at least one further contact session has taken place since without incident.

It emerged at the hearing, that the father had informed Ms Baker about the involvement of a Russian psychologist in contact, something she had not mentioned in her report of 7 April 2021. Ms Baker was recalled to address this issue. She told the court that her first discussion with the father had been on 22 January 2021. He had told her that he had been recording contact sessions and wanted her to listen to the recordings. He also told her that a psychologist from Russian Social Services had been involved. Her understanding, from discussions with the father, was that this was normal in Russia, and that he had supplied recordings to the psychologist. She accepted that she may have misunderstood the father. When he had told her, she was awaiting the father’s statement and did not inform the parties’ representatives or the court about this information. She recalls informing the father that it was not appropriate to record contact without the mother’s knowledge and she very properly refused to listen to recordings without approval of the court, but she accepted that she had not given advice to the father to desist from involving the psychologist, not knowing that the psychologist had been present listening in at contact sessions.

Ms Baker believed that the father had made the recordings and that they had ceased following the order of Ms Justice Russell on 2 February 2021. She told the court that she had had a further discussion with the father on 16 March 2021 when he had informed her that the psychologist had in fact been present during previous contacts. She did not inform the court or the parties and she has not referred to this in her report. She accepts that she should have brought this to the attention of others. Through Ms Stanley, she has apologised to the court for not having done so. From what she told the court, Ms Baker did not lead the father to believe that recording contact without the consent of the mother was acceptable, and he could not have had that impression after the hearing before Ms Justice Russell, but Ms Baker may have inadvertently given the father the impression that it was acceptable for him to continue to engage a psychologist to attend contact sessions without the mother’s consent or the court’s permission. Once Ms Baker had been made aware of the involvement of a psychologist she did not make it clear to the father that he should obtain the consent of the mother or the permission of the court and neither the father nor Ms Baker informed the court. Accordingly, the father was not told to desist.

Ms Baker told the court that on 12 April 2021, having received her report but before the next contact with A, the father emailed her saying that the psychologist had been present “from the beginning” and that he intended to file documents in Russia to explain that A was being told to say the things she had reported to Ms Baker about the father’s violence.

The evidence shows that the father paid for a child psychologist to sit with him during every contact session, that sessions were recorded until 2 February 2021, and that the psychologist continued to sit with the father during every contact session thereafter. Ms Baker only fully understood the role taken by the psychologist on 12 or 13 April 2021.

Article 1 of the Hague Convention states that its objects are:

Baroness Hale, in Re D (A Child: Abduction Rights and Custody) [2006] UKHL 51, at para.48, said:

“The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed.”

By Article 3 of the Convention the removal or retention of a child is considered to be wrongful if,

Article 12 of the Hague Convention provides that: “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding para., shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”

If A was habitually resident in England and Wales at time of her removal or retention, then the Convention has no further application, and the father’s application for return would fall to be dismissed. It is right to note that, notwithstanding, the court might exercise its powers under the inherent jurisdiction to order return on welfare grounds, Re KL (A Child) [2014] 1 FLR 772, but that is not argued in this case. If, on the other hand, A was habitually resident in the Russian Federation at the material time then it is necessary to go on to consider whether the case falls within one of the recognised exceptions under Article 13 which provides so far as is relevant to the present case that:

“13.

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

(a)

the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b)

there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”

If one or more of the Article 13 exceptions is made out, the court does not have to order return of the child and may exercise its judgment not to do so. This is commonly referred to as the exercise of the court’s discretion. Likewise, if settlement under Article 12 is established then the court has a discretion not to order return. It is not the role of this court to determine the longer-term arrangements for this child. The nature of these proceedings does not allow me to conduct a detailed welfare assessment. However, welfare considerations may apply to the exercise of the court’s discretion if that arises. The burden of proof in relation to wrongful removal or retention and habitual residence is on the applicant father. The burden of proof on settlement and the Article 13 defences is on the respondent mother. Insofar as either party alleges fraud, for example in relation to the obtaining of consent, the burden of proof in relation to that allegation falls on them. The civil standard of proof, on the balance of probabilities, applies.

Removal and retention are mutually exclusive concepts. Retention is a specific event. Lord Brandon of Oakbrook in Re H (Minors) (Abduction: Custody Rights) [1991] 2 AC 476, at 78 – 79 held that:

“…. Once it is accepted that retention is not a continuing state of affairs, but an event occurring on a specific occasion, it necessarily follows that removal and retention are mutually exclusive concepts. For the purposes of the Convention, removal occurs when a child, which has previously been in the State of its habitual residence, is taken away across the frontier of that State; whereas retention occurs where a child, which has previously been for a limited period of time outside the State of its habitual residence, is not returned to that State on the expiry of such limited period.”

In In the matter ofC (Children) [2018] UKSC 8 Lord Hughes explained the concept of wrongful retention and how it might arise before an agreed return date: [42] to [45]

The Court of Appeal has most recently considered the concept of habitual residence in M (Children) (Habitual residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105 and I have regard in particular to paras. [42] to [64] of the judgment of Lord Justice Moylan in which the significant authorities on the issue are reviewed, and the following principles are extracted:

These are mutually exclusive concepts, the difference between them having been described as “one of timing”, Re A (Minors) (Abduction: Custody Rights) [1992] Fam

Consent falls to be considered under Art 13a not under Art 3, Re P (A Child) (Abduction: Custody Rights) [2004] EWCA Civ 871; [2005] under the name Re P (Abduction Consent) [2004] 2 FLR 1057.

Consent obtained by fraud will not be considered valid, Re B (A Minor) (Abduction) [1994] 2 FLR 249.

Authorities including Cannon v Cannon [2005] 1 FLR 938, Re M (Abduction: Rights of Custody) [2008] 1AC 1288, and F v M & Anor [2008] 2 FLR 1270, establish the legal approach that the court should take to the issue of settlement. In a recent judgment in AL v SM [2020] EWHC 2479 para. [49], Lieven J extracted nine principles from the authorities on settlement which I adopt.

“42.

1.

Under the Convention at Article 12, "The court shall return the child, unless settlement is established". It therefore follows that the burden on establishing settlement is clearly on the abducting parent.

2.

Second, in deciding whether the child is now settled, the relevant date is the date of commencement of proceedings in England and Wales. (See F & M at paragraph 65)

3.

The court should not take an overly technical approach (see paragraph 66 of F & M).

4.

Each case is fact-sensitive. What I take that to mean in practice, is that there are no absolute legal rules that lead to one definitive result. What is necessary is to look closely at the facts of a particular case and then apply the relevant law to them.

5.

The court should take a broad and purposive approach. (See Cannon, paragraphs 53 and 57). It is relevant at this point to have close regard to both the purposes of the Convention, which are summarised by Baroness Hale at paragraph 11 of ReM, but also what Baroness Hale said at paragraph 54 of Re M. It is generally the case that it is in the best interests of the child for them to be returned to the country from which they were abducted, so that that country and the judicial system of that country can determine where and with whom they should live, and what contact they should have. However, it is important also to bear in mind what Baroness Hale said at paragraph 54, that in a case where there has been a lengthy delay, the purposes of the Convention may no longer be possible to meet in the same way as would be the case in a “hot pursuit” case.

6.

The question of whether a child is settled involves consideration of three elements. Physical, emotional and psychological settlement. (See Cannon, paragraph 71). However, it is, in my view, important to have in mind the reality of the situation, which is that those three factors may well interrelate, particularly between the emotional and psychological factors. It is necessary to take a holistic view of settlement, rather than try to apply three separate legal tests, or three separate issues. Each must be taken into account, but how they are then assessed and what weight is given to evidence between the three factors, must be one for the judge on the facts before him or her.

7.

The court must take a child-centred approach. The issue is what is the child's perspective on whether they are settled or not.

8.

Related to that, the emotional and psychological state of a principal carer will be highly important as to whether the child is settled, particularly when one is talking about a young child. (See F & M paragraph 70, and Cannon paragraph 57). That leads me to expand on the point that it may, for a young child, be very difficult to separate the emotional and psychological elements of settlement, to the degree that they are settled at all.

9.

I come to the issue of concealment. In cases of concealment, the burden on the abducting parent is increased. It is important to understand why this is the case and refer back to Cannon at paragraph 53. As I understand the position, there are really two reasons why the burden has increased on the abducting parent. If the child has been actively concealed, then the court should be slow to give great weight to the delay by the left behind parent in taking any action. Because otherwise the abducting parent gains a benefit by their misconduct. The second factor is that where the abducting parent has created a (I use Black J's words) “web of deceit and subterfuge”, then it may be more difficult and often will be more difficult to show that a child is emotionally and psychologically settled.

[42]

In my view, it must be the case that there is a sliding scale of concealment, and also a sliding scale of burden on the abducting parent. The sliding scale of concealment goes from the parent who is on the run, the true fugitive who changes names and hides the child, to the parent at the other end of the spectrum, who simply does not tell the left behind parent that they are leaving. Therefore, as a generality, the greater the level of the concealment, the more difficult for the abducting parent to show that the child is truly settled.

[43]

Finally in respect of the law on settlement, even if a child is settled in England and Wales, there remains a discretion not to return. This is dealt with in Re M, in particular Baroness Hale at paragraphs 43 and 47. It is important to have regard to the fact that Baroness Hale had started with setting out at paragraphs 11 and 12 the objectives of the Convention.

[44]

Mr Khan argued that it would be unusual to return a child who is settled. I am not sure the caselaw establishes that there is any presumption, but it must be the case that if the child is settled in England and Wales then normally when exercising discretion, the rights and welfare interests of the child will militate in favour of not returning. Each case necessarily involves looking at its own facts.”

The mother raises the defence under Art 13b. The principles to be applied in relation to grave risk are well established and were set out in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, in particular at [31] to [36]. MacDonald J helpfully summarised the applicable principles in MB v TB [2019] EWHC 1019 (Fam) at [31] and [32]:

“i.

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 or gloss.

ii.

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.

iii.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 ‘grave’. Although ‘grave’ characterises the risk rather than the harm, there is in ordinary language a link between the two.

iv.

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’.

v.

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 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.

vi.

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).

[32] The Supreme Court made clear that the approach to be adopted in respect of the harm defence is not one that demands the court engage in a fact-finding exercise to determine the veracity of the matters alleged as ground the defence under Art 13(b). Rather, the court should assume the risk of harm at its highest on the evidence available to the court and then, if that risk meets the test in Art 13(b), go on to consider whether protective measures sufficient to mitigate harm are identified. It follows that if, having considered the risk of harm at its highest on the available evidence, the court considers that it does not meet the imperatives of Art 13(b), the court is not obliged to go on to consider the question of protective measures.”

At [37] of the same judgment MacDonald J addresses the way in which the court should evaluate evidence:

“The methodology endorsed by the Supreme Court in Re E by which the court assumes the risk relied upon at its highest is not an exercise that is undertaken in the abstract. It must be based on an evaluation of the relevant admissible evidence that is before the court, albeit an evaluation that is undertaken in a manner consistent with the summary nature of proceedings under the 1980 Hague Convention. The court does not simply assume, without more, the maximum level of risk contended for by the abducting parent. Rather, the court examines the information available to it and, having considered that information, arrives at a reasoned and reasonable assumption as to the maximum level of risk having regard to the available evidence.

In Re D (Abduction: Rights of Custody) [2006] UKHL 51, Baroness Hale held as follows at [52]:

“"Intolerable" is a strong word, but when applied to a child must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate". It is, as article 13(b) makes clear, the return to the requesting state, rather than the enforced removal from the requested state, which must have this effect. Thus, the English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there. In many cases this will be sufficient. But once again, the fact that this will usually be sufficient to avoid the risk does not mean that it will invariably be so.”

Re M (above), Baroness Hale gave guidance on the exercise of the discretion which applies however the discretion arises under the Convention at [43]:

“… in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child’s rights and welfare.”

Ms Baker gave careful and considered evidence. She was disadvantaged by not having observed a contact session (other than the end of an audio session when the father and A were saying goodbye to each other). Nevertheless, she had enjoyed two long, remote discussions with A in January 2021, and she had had a number of conversations with each parent, assisted by interpreters.

Ms Baker was able to inform the court of feedback from A’s school which was glowing. She is clearly happy at school, in her friendship groups, and is an intelligent, hardworking and well-liked girl. The school also reports the mother’s positive engagement with the school, albeit that she can be anxious at times. A talked fluently and confidently to Ms Baker who was satisfied that there was no-one else in the room with her. At para. 15 of her report she says,

Ms Baker told the court that she considered that A was authentic throughout. She considered that A had an independent memory of standing in front of her father whilst he was hitting the mother, trying to stop him, but that she had been told of other matters by her mother, and the maternal grandparents. Another example of this is at para. 20:

“As a result of a conversation she had had with [the mother] and her grandmother the night before our meeting when they were talking about her father, A understood he told her he loved her because he wants to remove her from her mother’s care.”

A said that contact was “very easy. Now he is not very bad now. I can see that he’s very different to the past.” She had told the father that she was happy in England. She joked that on the telephone the father could not hit her but she would be “very scared” if she could see him during video calls because he used to hit her. Ms Baker accepted in crossexamination that the mother had never alleged that the father had hit A, but that A had repeatedly told her that he had done so.

Ms Baker reported at para. 30 [D11] that,

“... A has achieved the maximum degree of physical and emotional settlement here within an environment in which her developmental needs are largely met within the context in which she finds herself. However, give that her relationship with her father recently resumed after a sizeable gap in contact, and given that contact remains an issue, I consider the issue of contact to be the area in which her full psychological settlement remains an issue.”

The father’s case is that the mother wrongfully removed A from Russia to Moldova, and then tricked the father into ostensibly agreeing to her taking A to England. The mother never intended to return A from England and used her mother’s illness to trick the father into agreeing for her to travel there with A. Thus, there was wrongful removal when she travelled to England on 8 July 2018. In the alternative, there was wrongful retention when she did not return A in time for nursery in Russia on 1 September 2018. Further alternatively, there was wrongful retention in October 2018 when the father had realised he had been tricked and demanded return of A. The mother manifested an intention to stay in England by cutting off contact, refusing to disclose her address and enrolling A in school. At all of these times A was habitually resident in the Russian Federation. The father submits that A was not settled in England as of 14 October 2020 because she was not emotionally and psychologically settled given the termination of contact with the father by the mother two years earlier. Further, the protective measures suggested by the father and the mother’s history of living in, and familiarity with, the Russian Federation, mean that the Article 13b defence is not established.

The mother’s case is that the father freely agreed to A travelling to and staying in England until 12 June 2019. She terminated contact once here only after a few months and because the father had been distressing A and threatening to take her away from her mother. She wanted A to be educated whilst she was in England and so enrolled her into a school. It was only over a period of about six months when she realised that she and A were thriving and happy, A was already settling into her new school, and they had a new home with the maternal grandparents, that she decided to remain in England on a permanent basis. By writing her letter of 20 January 2019 she accepts that she manifested that intention. The mother does not seek to argue that retention was on 12 June 2019. The mother says that A was habitually resident in England by 20 January 2019, indeed well before then, and was certainly settled by 14 October 2020. In any event return would be obviously harmful to A and the Art 13b defence is established.

Ms Stanley on behalf of the Guardian supports the mother’s submissions in full. The Guardian submits that A was fully settled as of 14 October 2020 and that return would expose her to a grave risk of harm.

It is not possible at the hearing of this summary application to make detailed findings of fact on the nature of the relationship of the parties and allegations of coercion, control and physical assault. There is a gulf between the parties as to the history of domestic abuse in the Russian Federation and some findings may be necessary before final welfare decisions can be made, in whichever jurisdiction is appropriate.

I directed that oral evidence from the parties should be restricted to issues of the circumstances of the mother’s departure with A to England in 2018, discussions between the parties about any agreed return and/or destination of return, and settlement of the child.

The father is a practising immigration lawyer, living in the Russian Federation. He gave evidence through an interpreter, and over a video link from Russia. I have to make allowances for the difficulties this caused. Nevertheless, the manner in which he dealt with cross-examination was striking. The impression I gained was that he regarded cross-examination as like a game of chess which required a careful strategy and which he was determined to win. There is nothing wrong with a witness being assertive, for example to ensure that their full answer to a question is given. The mother herself did that. But the father’s approach went beyond assertiveness. He insisted on providing lengthy contexts when answering simple questions thereby avoiding giving straightforward answers to straightforward questions; he commented critically several times on the questions put to him when he regarded them as repetitive or otherwise inappropriate; he accused Mr Hepher, for the mother, of having forgotten evidence and, when Mr Hepher simply put the mother’s case to the father, of being unethical. He repeatedly, and unjustifiably, accused Mr Hepher of having misunderstood the answers he was giving. Furthermore, the father introduced new evidence for the first time at the hearing. His new evidence was not about peripheral matters but went to the core of the issues in dispute. The father was dismissive when the impact of his new evidence at the hearing was pointed out to him.

Aside from the introduction of new, and inconsistent evidence during the hearing, there were other parts of the father’s evidence that were incoherent and difficult to accept. The father says that he was tricked by the mother and her father into signing the formal consent document on 12 June 2018 [C11] which he had not understood and which did not reflect the agreement they had reached after a week of negotiations.

At one point the father’s evidence under cross-examination took a sinister turn. When asked quite properly why something he had just said was not in his witness statements, he told the court that he had left some matters out of his statements in order to protect the mother. He was asked by Mr Hepher what else he had not included in his statement. The father told the court that there were some things he knew that would have serious consequences for the mother. He then said that he knew that she had contacted a “professional” to arrange to eliminate him (the father) and then to go into hiding. When he gave that evidence the clear impression was that he was threatening that he could cause the mother to be in significant trouble with the police in Russia if he so chose. When that was put to him by Ms Stanley on behalf of the Guardian, he changed course, laughing openly about the allegation and telling the court that he had not taken it seriously and he did not think that the mother had been serious about it either.

The formal consent document was written up in Moldova, the parties were in Moldova when it was signed, and, in translation, it refers to the father’s consent to removal of A from Moldova. Return to Russia is not mentioned in the document. Indeed, the consent in translation was for “travel out Republic of Moldova… from 12.06.2018 to back 12.06.2019”. This implies that the parties had agreed that the mother would bring A back to Moldova at the end of the period in which the father had consented to her travelling away from that country. I can find no evidence to support the father’s assertion that the mother agreed to return A to the Russian Federation by 12 June 2019 or at all. She and A had left there in April 2018, they had no family there other than the father, who was in fact in Moldova when he gave his consent to A being taken out of Moldova. Without hesitation, I reject the father’s evidence that there was an agreement to return A to Russia. I also reject his evidence that the agreement was to return A to Russia (or anywhere else) by 1 September 2018. He had not mentioned that in his witness statements, it is at odds with the formal consent document, and his Counsel referred in her opening skeleton argument to the agreement of the parties that A was to remain in England until 12 June 2019.

I remind myself of the authority of R v Lucas. Witnesses may lie for many reasons, including to protect others, and the fact that a witness lies about one matter does not mean that they are lying about everything, nor that they are guilty of the matters alleged against them. Inconsistencies in evidence may arise for many reasons, not only deliberate lies. However, whilst many witnesses are inconsistent, few display such shameless disregard for their inconsistencies as the father did at this hearing. I am sure, having regard to the evidence as a whole, that the father deliberately lied to the court about a number of matters in order to mislead the court, specifically:

The mother gave evidence remotely and through an interpreter. She told the court that when she left Russia on 26 April 2018 she had feared repercussions from the father had she told him of he departure in advance. She had asked for his agreement for her to leave several times but he had not given it. She left the house with A and called him from Moscow. She said that, to her surprise, he said he was agreeable to them visiting Moldova and then returning. The mother was clear that the father had agreed, after discussion in Moldova at which her own father was present, to the mother taking A to England for up to one year. She said that after she had come to England, contact took place for a few months – she thought it had ended earlier than October 2018, which is the date the father says it ended, but she was uncertain in her evidence on that point. Her account as to the cessation of contact and her letter to the Moldovan Police on 20 January 2019 is set out earlier in this judgment.

In general, the mother answered questions thoughtfully and with care. The mother’s evidence that she wanted to travel to England to be with her parents is credible. Since she expected to be there for several months it was natural for her to register A with a GP and with a school. The mother clearly values her child’s education and her registration with a school was not an indication that she had no intention of leaving England by June 2019. Whilst primary school education might have started a year or so later in Russia, it was the only sensible option for A in England, if she was to be in some form of education. The mother told the court that she did not know what she was going to do in the longer term in the weeks after A started school. By Christmas 2018, however, the mother and A had been in England for over five months, they had just moved into new accommodation with the maternal grandparents, A was shortly due to start at a new school but had settled in well at her previous school. The mother says that she had noticed a positive change in A being settled here in England. She was a happier girl. The parties agree that the mother’s letter of 20 January 2019 manifested an intention not to return from England by 12 June 2019. By then A had been living in England for just over six months, and there was clearly an intention on the part of the mother for her to continue to live here indefinitely.

There were two significant aspects of the mother’s evidence that appeared to be inconsistent. The first was in relation to her departure from Russia on 26 April 2018. On her case the mother was fleeing an abusive relationship in which she had recently been violently attacked. The father was refusing to allow her to leave for Moldova to visit her grandmother. She told the court that she called the father from Moscow, having left their family home in Y, and that to her surprise he was happy for her to leave for Moldova. She did not say that in her witness statements and it is difficult to believe, given the conduct of the father. The mother was somewhat evasive when answering questions about this aspect of the case and I do not accept that the father verbally agreed to her continuing her journey to Moldova with A.

The second inconsistency arose when the mother firmly denied in cross-examination that a few months after her arrival in England with A the father had demanded A’s return. Ms Chokowry for the father pressed the mother on this point because the father had told the court that the mother had agreed to return A to Russia before 1 September 2018. The mother denied that, but her denial that the father had demanded return to Russia at all did not sit easily with a witness statement she had given to the Police in

One valid criticism of the mother is that she has apparently told A about the father wanting to take her away from the mother, and away from England. Whatever the truth, it is not helpful for A to be caught up in disputes between the parents in that way, hearing one side of the dispute.

Ms Baker confirmed that the mother would, very reluctantly and with great trepidation, return with A to the Russian Federation, if a return order were made. In relation to the defence of grave risk of harm, following the authorities, I assume the maximum level of risk on the available evidence. This is not necessarily the same as the mother alleges it to be. The mother alleges coercive and controlling behaviour by the father whilst the parties lived together in the Russian Federation. She also alleges physical violence by him against her, with a particularly serious incident in March 2018 which triggered her leaving for Moldova. The mother’s allegations are not manifestly incredible, and photographs adduced by both parties tend to show that there was a physical struggle between them, at the very least. The parties agree that neighbours and the police became involved and that A was present. The mother has been diagnosed with post traumatic stress disorder since arriving in England. It was very noticeable that having remained calm during the hearing, she broke down in tears, clearly distressed, when Mr Hepher spoke of some of the past alleged domestic abuse in his closing submissions. For the purposes of this application, without making any findings in relation to domestic abuse, I consider it reasonable to assume that the father was controlling, coercive and physically violent to the mother during the relationship. I bear in mind the guidance under FPR PD 12J and the approach to allegations of abuse set out in my review of the law above. I recognise that a history of controlling and coercive behaviour by the father would give rise to a risk of such behaviour continuing in the future with harm to the child in various ways. For example, the child is distressed by witnessing domestic abuse, and by witnessing the effect on her mother. The child is given a poor model of conduct. The mother who is suffering from such conduct is less able to give appropriate care for the child. For the purposes of this application I assume that there is a risk that upon return to the Russian Federation, the child would be exposed to the harmful effects of coercive and controlling behaviour by the father towards the mother, which would be magnified by closer proximity.

The father offered protective measures upon A’s return. They are set out in his witness evidence and include financial measures to support the mother upon return. At the hearing he offered an additional measure not to apply for sole custody of A. Notwithstanding his many allegations against the mother, and his assertion as recently as 13 April 2021 to Ms Baker that A was in danger as a result of the actions of the mother and her family, the father told me that he has come to realise that it is in A’s best interests to be cared for by the mother. Given the father’s remarks that he held information about the mother that could land her in serious trouble on return to Russia, and given his dishonesty in relation to important parts of his evidence, it is difficult to accept the sincerity of his offers. I understand him to say that they should be set out in an order, rather than to be accepted as undertakings, because the order could be registered in a Russian court. However, I have no confidence that the father would abide by such orders once the mother and A were in Russia. In any event, his suggested financial contributions are of little meaning given that it is not clear where A and her mother would live, in particular since he has so very recently moved to Moscow on a permanent basis.