AO v LA

The exception is in these terms:

“The judicial … authority of the requested State is not bound to order the return of the child if the person …, [who] opposes its return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

The verbs “expose” and “place” are used in the future subjunctive tense. This tense is used to describe a possible action or scenario in the future. So, obviously, the exception is “looking to the future” (Re E (Children) [2011] UKSC 27 [2012] AC 144 at [35]) or “forward looking” (Hague Convention 1980 Guide to Good Practice at [35] – [37] (‘the Guide’)). Under the terms of the exception the court is required to make a prediction of the degree of likelihood of a possible future event, and then to make (in effect) a temporary order reflecting the result of that assessment. It has to do so in interim, summary proceedings where the written evidence will not be tested by cross-examination.

This is routine work for the court. It is what the court has to do when faced with an application for an interlocutory injunction, or when asked to make an interim care order under s.38 of the Children Act 1989. There are countless other examples where the court has to make an order of a protective nature based on a prediction about future facts.

Although there is an extensive body of case law about this exception, none that I am aware of addresses the requisite degree of likelihood of the perils referred to in Article 13(1)(b) or the appropriate mode of proof of that likelihood. In my opinion, the jurisprudence on the grant of interlocutory injunctions is an extremely useful analogy when analysing these key components of the exception.

In the seminal decision of American Cyanamid Co v Ethicon Ltd [1975] AC 396 Lord Diplock held at 406:

“In those cases where the legal rights of the parties depend upon facts that are in dispute between them, the evidence available to the court at the hearing of the application for an interlocutory injunction is incomplete. It is given on affidavit and has not been tested by oral cross-examination. The purpose sought to be achieved by giving to the court discretion to grant such injunctions would be stultified if the discretion were clogged by a technical rule forbidding its exercise if upon that incomplete untested evidence the court evaluated the chances of the plaintiff's ultimate success in the action at 50 per cent. or less, but permitting its exercise if the court evaluated his chances at more than 50 per cent.”

And at 407:

“It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial …. So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.”

In this passage, Lord Diplock clearly acknowledges that on an injunction application it is the court’s function to evaluate the applicant’s chance of success. He rejected a rule, which had been embraced by some judges, that would only allow an injunction to be granted if that probability assessment was more than 50%. In his opinion, such a rule would stultify the purpose of the power to award an injunction and clog the discretion to do so. But he did not reject such a rule because it would be impossible, or even difficult, to make the assessment of the chance of success.

Instead, the first thing that the court has to do on an injunction application is to satisfy itself that the applicant has a “real prospect of success”. This does not mean that the court has to be satisfied that the applicant is more likely than not to succeed at trial, but rather that it has a good chance of succeeding. Although Lord Diplock does not put a figure on it I expect that he would have said that a probability of no less than 25% would be needed to satisfy this standard. If so satisfied the next step is to ask if damages would be an adequate remedy for the applicant should it succeed (in which case the injunction should be refused) or if damages would be sufficient recompense to the respondent if the injunction was later discharged at trial (in which case it should be granted). Lord Diplock then continued:

“It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.

Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. …

…if the extent of the uncompensatable disadvantage to each party would not differ widely, it may not be improper to take into account in tipping the balance the relative strength of each party's case as revealed by the affidavit evidence adduced on the hearing of the application. This, however, should be done only where it is apparent upon the facts disclosed by evidence as to which there is no credible dispute that the strength of one party's case is disproportionate to that of the other party. The court is not justified in embarking upon anything resembling a trial of the action upon conflicting affidavits in order to evaluate the strength of either party's case.”

Therefore, where an interlocutory injunction is sought, and the written evidence reveals significant contested facts, the court will not normally attempt to resolve those disputes. Provided that the applicant demonstrates that it has a “real prospect of success” the court will establish, first, if damages would be an adequate remedy to either party were the injunction to be respectively refused or granted and if so will refuse or award an injunction accordingly. If damages would not suffice either way, the court will make an order based on the balance of convenience. This will be likely to favour the status quo, but may also reflect the relative strengths of each party’s case provided that this is based on facts about which there can be no credible dispute.

Where the interlocutory injunction sought is a freezing order, proof of a risk of dissipation of assets which would otherwise be available to meet a judgment is an indispensable requirement. In Crowther v Crowther [2020] EWCA Civ 762 at [47] Males LJ held that:

“(1)

The claimant must show a real risk, judged objectively, that a future judgment would not be met because of an unjustified dissipation of assets. In this context dissipation means putting the assets out of reach of a judgment whether by concealment or transfer.

(2)

The risk of dissipation must be established by solid evidence; mere inference or generalised assertion is not sufficient.”

The standard of proof of such a risk in such a case, is not necessarily as high as “more likely than not” In Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Gleeson CJ held that:

‘…it is not difficult to imagine situations in which justice and equity would require the granting of an injunction to prevent dissipation of assets pending the hearing of an action even though the risk of such dissipation may be assessed as being somewhat less probable than not.’ (Footnote: ³)

For obvious reasons, it makes very good sense to align the degree of likelihood of “a real risk of dissipation” in a freezing order application with Lord Diplock’s “real prospect of success”, which I have suggested would be represented by a probability of no less than 25%.

However for a certain type of case, namely where an interlocutory injunction is sought to restrain a publication by the media, Parliament in the Human Rights Act 1998 has modified these rules and provided for a higher test than that provided for in American Cyanamid. Section 12(3) of the 1998 Act provides:

“No such relief [which might affect the exercise of the Convention right to freedom of expression] is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.”

In Cream Holdings Ltd v Banerjee [2005] 1 AC 253 Lord Nicholls addressed this provision and held at [20]:

“These considerations indicate that “likely” in section 12(3) cannot have been intended to mean “more likely than not” in all situations. That, as a test of universal application, would set the degree of likelihood too high. In some cases application of that test would achieve the antithesis of a fair trial. Some flexibility is essential. The intention of Parliament must be taken to be that “likely” should have an extended meaning which sets as a normal prerequisite to the grant of an injunction before trial a likelihood of success at the trial higher than the commonplace American Cyanamid standard of “real prospect” but permits the court to dispense with this higher standard where particular circumstances make this necessary.”

And at [22]:

“…on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success “sufficiently favourable”, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (“more likely than not”) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.

In that case there were disputes of fact (see [6]) but those notwithstanding Lord Nicholls was able at [25] to conclude on the written material, untested by cross-examination, that:

“On the evidence the Cream group are more likely to fail than succeed at the trial, and the Cream group have shown no sufficient reason for departing from the general approach applicable in that circumstance.”

The injunction granted by Lloyd J (wrongly based on the American Ethicon standard) was discharged.

In my judgment this case is clear authority for the following principle. Where a statute stipulates a heightened degree of likelihood of a future harmful event as a precondition for an order protecting Party X against the happening of that event, the court must appraise the written evidence and make a decision whether, applying that heightened standard of probability, Party X would succeed at a trial in proving the pleaded facts.

I revert to the Article 13(1)(b) exception. Here, the possible future event is expressed in the alternative:

The court has to be satisfied that there is a “grave risk” of the child having to endure an intolerable peril. The term "grave" qualifies the risk and not the harm to the child. The Guide at para 34 thus states, perhaps tautologically:

“It indicates that the risk must be real and reach such a level of seriousness to be characterised as ‘grave’”

A “grave risk” therefore means a high probability. It cannot mean anything else.

The requirement of proof of a “grave risk” signifies that the degree of likelihood that must be proved will be higher than the American Cyanamid standard. Equivalently, it has to be higher than the degree of likelihood of dissipation needed to be proved to get a freezing order. I cannot see any reason why it should be, in the great majority of cases, any less than the civil balance of probability. I see very good reasons why as a matter of logic, semantics, and the avoidance of family law desert-island exceptionalism, the high probability denoted by “grave risk” in Article 13(1)(b) should, in the great majority of cases, be the same level of probability as that required in a case governed by s. 12(3) of the Human Rights Act 1998 (i.e. more likely than not).

However, as explained by Lord Nicholls in Cream Holdings Ltd v Banerjee, there may be cases where the potential adverse consequences, should the future event happen, will be particularly grave. In such a case, he said, it may be necessary for a court to depart from this general approach and to allow a lesser degree of likelihood as a prerequisite for a protective measure.. This mirrors what Baroness Hale was saying in Re E at [33]:

“Second, the risk to the child must be "grave". It is not enough, as it is in other contexts such as asylum, that the risk be "real". It must have reached such a level of seriousness as to be characterised as "grave". Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm.”

She said the same in Re S-B Children [2009] UKSC 17, [2010] 1 AC 678 at [9]:

“Thus the law has drawn a clear distinction between probability as it applies to past facts and probability as it applies to future predictions. Past facts must be proved to have happened on the balance of probabilities, that is, that it is more likely than not that they did happen. Predictions about future facts need only be based upon a degree of likelihood that they will happen which is sufficient to justify preventive action. This will depend upon the nature and gravity of the harm: a lesser degree of likelihood that the child will be killed will justify immediate preventive action than the degree of likelihood that the child will not be sent to school.”

However, I consider that a court should, in Lord Nicholls’s words, be “exceedingly slow” to depart from the general approach where the Article 13(1)(b) exception is relied on. Therefore, save in very exceptional situations, the court would need to be satisfied that if the child were returned it was more likely than not he would have to endure an intolerable peril.

Where the exception is raised there will inevitably be strong factual disputes between the parents. Before embarking on an appraisal of the relative strengths of the respective factual cases the court will first ask whether the facts pleaded by Parent X would, standing alone, amount to an intolerable peril. If the answer is no, that is the end of the defence. If the answer is yes, the court will ask if the intolerable peril can be nullified by protective measures against Parent Y (Re E at [36]).

On an application for an interlocutory injunction this would be an entirely conventional approach. The court will ask in such a case whether the risk of the mischief in question can be nullified by the giving of undertakings, before it embarks on an enquiry about the sufficiency of damages and the balance of convenience.

Most types of intolerable peril can be nullified by appropriate protective measures. If State A is a subscriber to the 1996 Convention (as is the case here) then it almost certainly will have exclusive primary jurisdiction to resolve the substantive welfare dispute (Article 7(1)). Under Articles 7(3) and 11, State B can impose ‘any necessary measures of protection’ which take effect in State A by operation of law (Article 23) and lapse when State A imposes measures required by the situation (Article 11(2)). These powers “strongly reinforce the return mechanism of the 1980 Convention” (Re J (A Child) [2015] UKSC 70 at [31]). The protective measures can include non-molestation orders and orders for the provision of maintenance so that Parent X and the children can be housed and supported until the court of State B can deal with those issues.

If, for whatever reason, protective measures will not nullify the apprehended intolerable peril, or if their imposition would be disproportionate or impracticable, then the court will have no option but to do the best it can to resolve the main factual disputes between the parties in order to determine if it was more likely than not that were a return ordered the child would have to endure an intolerable peril (Re E at [36]). In common with injunction proceedings, that determination will not involve the parties being cross-examined and re-examined (these being summary proceedings where oral evidence is very rare generally, and unknown where the Article 13(1)(b) exception is relied on). The court in effect evaluates Parent X’s chances of successfully proving that the child would have to endure an intolerable peril if he were returned.

In Re B (Children) (Abduction: Consent: Oral Evidence) (Article 13(B)) [2022] EWCA Civ 1171 at [54] Moylan LJ stated:

“Like Mr Turner, [Mr Setright] pointed to the difference between Article 13(b) and consent. The latter is a fact-finding exercise while the former is not. The former is not, because to embark on such an exercise when determining a case under Article 13 (b) would encroach "on both the summary aspect of the jurisdiction, and on the welfare jurisdiction of the requesting state, and which can be a difficult exercise on balanced written evidence if the parties are not heard orally." The latter is a fact-finding exercise and one in respect of an issue which, Mr Setright submitted, goes to the "heart of the case" when consent is relied upon.”

This passage highlights the fundamental distinction between the two exceptions. The exception of consent requires proof of past facts, whereas the Article 13 (1)(b) exception requires the making of a prediction about the likelihood of a future event. However, each requires the court to make a probabilistic assessment, in the former case as to whether past events have happened and in the latter as to whether future events will happen. As explained above, an essential difference between the two processes, is the standard of proof required to reach the decision. But, as I have sought to suggest above, in almost all Article 13(1)(b) cases the standard of proof required for the prediction should be the normal civil standard. Further, when making the prediction, the court in almost every case will have to make some findings about past events, since, as Lord Byron put it, "the best prophet of the future is the past".

So, under the Article 13(1)(b) exception the court will usually be undertaking an exercise of finding both past and future facts. The passage I have cited above says that such a fact-finding exercise is either impossible or, if possible, very difficult. I do not understand this. Plainly, if the protective measures sought do not nullify the risk, or if protective measures cannot be imposed, the court is going to have to conduct a form of fact-finding exercise about the past events on the written evidence, amplified by written and oral submissions, as best it can. Were it to be suggested that in the absence of functioning protective measures the court should simply assume that the allegations pleaded in support of the exception by Parent X are true and then go on to refuse the application, then I would say that such an approach would be unlawful. This is because the burden is on Parent X to satisfy the court that it is more likely than not that if the child is returned he will have to endure an intolerable peril. That decision can surely only lawfully be made by weighing the evidence of both parents.

The passage implies that if there is a dispute about the truth of alleged past facts then that dispute can only be resolved by testing the allegations in cross-examination. I disagree. In my opinion, in summary proceedings of this nature the requisite findings can be made in virtually every case, whichever exception is relied on, without cross-examination, for the reasons that follow in the next section of this judgment..

Cross-examination traditionally has a lofty, almost numinous, reputation as being the best forensic tool for establishing the truth or falsity of a disputed fact.. In Carmarthenshire County Council v Y [2017] EWFC 36 at [7] – [8] I reviewed the authorities and held:

“7.

FPR 22.2(1)(a) provides that the general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved, at the final hearing, by their oral evidence. FPR 22.6(2) in effect removes the right to give oral evidence-in-chief as in all cases a witness (other than a summoned witness) will have been required to provide a witness statement, which will stand as evidence-in-chief. Oral evidence-in-chief now requires the permission of the judge be given. FPR 22.11 provides the right to cross-examine a witness on his or her witness statement. Thus, the general rule is that facts in issue are to be proved by written evidence-in-chief and oral evidence given under cross-examination. Of course, facts may also be proved by hearsay evidence pursuant to the Civil Evidence Act 1998 and FPR 23.2 – 23.5, but the general rule is that oral evidence given under cross-examination is the gold standard.

8.

Why is this? It is because it reflects the long-established common-law consensus that the best way of assessing the reliability of evidence is by confronting the witness. In Crawford v Washington (2004) 541 US 36 at 62 Scalia J, when discussing the explicit command to afford cross-examination of witnesses in criminal cases contained within the Sixth Amendment to the U.S. Constitution, stated:

"To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Cf. 3 Blackstone, Commentaries, at 373 ("This open examination of witnesses . . . is much more conducive to the clearing up of truth"); M. Hale, History and Analysis of the Common Law of England 258 (1713) (adversarial testing "beats and bolts out the Truth much better")."

In Re P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC 27 at 260 Macdonald J was referred to the American jurist John Henry Wigmore, who observed that “cross-examination is the greatest legal engine ever invented for the discovery of truth”.

This probably over-states the potency of the technique.

In Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm) Leggatt J (as he then was) at [15] – [22] famously spoke about the inherent unreliability of testimony based on memory. At [22] he stated:

"In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth."

In Carmarthenshire County Council v Y at [17] I stated:

“In my opinion this approach applies equally to all fact-finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context.”

These passages have since been cited in many reported cases (Footnote: ⁵).

Since then, Leggatt J’s views on the potential dangers of placing too great a regard on testimony based on a witness’s memory have been expressed in para 1.3 of the Appendix to CPR PD 57AC. This states:

“Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory:

(1)

is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but

(2)

is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore

(3)

is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.”

These principles have been reiterated for family proceedings in para 14 of the President’s Memorandum on Witness Statements dated 10 November 2021.

Accordingly, cross-examination is by no means an indispensable method for a court to discover the truth. Indeed, as Lord Leggatt has pointed out both judicially and as a speaker, cross-examination may lead to a court making a judgment based on a witness’s demeanour, which course is pregnant with the real risk of making an entirely wrong assessment. In his recent speech to the At A Glance Conference (Footnote: ⁶), he stated:

“If you try to infer veracity from demeanour, you are likely to be fooled by witnesses who have an honest demeanour but are lying and to disbelieve witnesses who have a poor demeanour but are in fact giving honest evidence ”

Therefore, in the unlikely event that protective measures cannot or do not nullify an apprehended intolerable peril to a child, it should be possible, with the assistance of skilled advocacy, to make the necessary findings of fact and the necessary predictions on the written material to determine whether the exception is established, or not. This is precisely what Lord Nicholls did in Cream Holdings when applying the heightened requisite degree of likelihood stipulated in s.12(3) of the Human Rights Act 1998. And, as I have shown, Lord Diplock in American Cyanamid recognised that such a finding on the written material would be possible.

In my opinion the same reasoning ought to apply logically to all other exceptions under the 1980 Convention including consent, acquiescence and settlement, although I accept that the weight of authority is against me. I agree with Moylan LJ that these exceptions require a fact-finding exercise but I do not agree that it is only with the benefit of seeing witnesses ‘tested in the crucible of cross-examination’ (as Scalia J put it) that the ‘truth is beaten and bolted out’ (in the words of Sir Matthew Hale). To be frank, cross-examination is often a largely pointless and futile exercise if it amounts to little more than counsel putting disputed facts to a witness. It is a dispiriting and largely useless experience for a judge to listen (often through translators) to lengthy cross-examination of a witness along those lines (as so often seems to be the case in Hague cases).

It is a very rare case where, without having been confronted by the documentary record or known or probable facts, a witness nonetheless collapses under cross-examination and admits that his witness statement is untrue.

On the other hand, as Leggatt J pointed out, the primary utility of cross-examination is to demonstrate the inconsistency of a witness by referring him to contemporary documents and incontestable facts. This process certainly underscores the inconsistency of the witness and therefore impeaches his credibility. But, if the truth be known, the inconsistency can just as well be pointed out, if somewhat less dramatically and forcefully, in oral submissions by counsel to the court.

Nor should the so-called rule in Browne v Dunn [1894] 6 R 67 mean that there has to be cross-examination if a party is asking the court to disbelieve the other party. In that case Lord Herschell LC held that a witness cannot be ambushed by a previously unadvertised allegation of dishonesty. He stated, in effect, that a witness must be given a fair opportunity to deal with the allegation by it being put to him in cross-examination.

However, in Ras Al Khaimah Investment Authority v Azima [2021] EWCA Civ 349 at [95] the Court of Appeal referred with seeming approval to my view expressed in Sait v General Medical Council [2018] EWHC 3160 (Admin) that this rule must be regarded as obsolete as the modern system of conducting litigation would prevent any such ambush happening. At [46] I stated:

If I am wrong and this rule subsists, there can be no question of it derailing summary proceedings of this nature. In BPY v MXV [2023] EWHC 82 (Comm) Butcher J assumed that the rule still existed, but stated:

“However, it is not an inflexible [rule]. Procedural rules such as this are the servants of justice and not the other way round.”

The Practice Guidance: Case Management and Mediation of International Child Abduction Proceedings issued by Sir James Munby P on 13 March 2018 ("The Practice Guidance") states at para 3.8:

"Oral Evidence

The court will rarely make a direction for oral evidence to be given. Any party seeking such direction for oral evidence will need to demonstrate to the satisfaction of the court that oral evidence is necessary to assist the court to resolve the proceedings justly."

In Re K (Abduction: Case Management) [2011] 1 FLR 1268 at [15] Thorpe LJ stated that:

“Not only should orders for oral evidence be extremely rare but, in my judgment, they should never be made in advance of the filing of written statements on the point in issue”

In Re B (Children) (Abduction: Consent: Oral Evidence) (Article 13(B)) [2022] EWCA 1171at [53] Moylan LJ stated that:

“The preponderant effect of the [overseas] authorities was that oral evidence was rarely permitted generally but with courts being more inclined to hear oral evidence on the issue of consent.”

While I entirely accept Moylan LJ’s stricture that I should not have glossed the word “necessary” in para 3.8 of the Practice Guidance by suggesting that its synonym is “demanded”, I would suggest, having regard to what I have written above concerning the summary nature of the proceedings and the doubtful utility of much cross-examination, that para 3.8 should be applied literally and conscientiously in every case where an order for cross-examination is sought.

Where the court of State B is satisfied that the terms of the exception have been proved this gives rise, at any rate in theory, to a consequential discretion to decide whether or not to return the child to State A. This “discretion” arises from the clear language of the exception: “The judicial … authority of the requested State is not bound to order the return of the child if the person …, [who] opposes its return establishes …..” Indeed, the language of the exception does not frame the discretion in neutral terms but, in using the negative compound-verb form “not bound to return” implies that under the Convention the court is normally bound to order a return; that only very exceptionally will it not do so; and that it will not necessarily and invariably refuse to do so where the exception is proved.

That is not how the discretionary power has been interpreted. On the contrary, it has been held to be of the type of discretionary power granted to the court which is more theoretical than real and where its exercise is almost invariably driven by proof of the threshold facts that trigger the discretion. Thus, in In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, HL Baroness Hale stated at [55]:

"But, as my noble and learned friend, Lord Brown of Eaton-under-Heywood, pointed out in the course of argument, it is inconceivable that a court which reached the conclusion that there was a grave risk that the child's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate"

Similarly, in In re M (Children) (Abduction: Rights of Custody) [2008] AC 1288, at [45] Baroness Hale cited the above passage from In re D, and observed that it was not the policy of the Convention that children should be put at serious risk of harm or placed in intolerable situations. It is true that the Guide at para 42 states that:

“….where the court is satisfied that the evidence presented / information gathered, including in respect of protective measures, establishes a grave risk, … it is within the court’s discretion to order return of the child nonetheless.”

However, the Guide gives no examples of situations where the court might, having made that finding, order a return nonetheless. And I cannot conceive of any.

The correct approach to the child’s objections exception was laid down by the Court of Appeal in Re M (Republic of Ireland)(Child’s Objections)(Joinder of Children as Parties to Appeal) [2015] 2 FLR 1074. At [18], Black LJ stated:

“In England and Wales, the normal approach to the child’s objections exception is to break the matter down into stages. There is what is sometimes called the “gateway stage” and the discretion stage. The gateway stage has two parts in that it has to be established that (a) the child objects to being returned and (b) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views. If the gateway elements are not established, the court is bound to return the child in accordance with Article 12. If the gateway elements are established, the court may return him or her but is not obliged so to do. This approach has not been challenged before us.”

And at [76]:

“The starting point is the wording of Article 13 which requires, as the authorities which I would choose to follow confirm, a determination of whether the child objects, whether he or she has attained an age and degree of maturity at which it is appropriate to take account of his or her views, and what order should be made in all the circumstances. What is relevant to each of these decisions will vary from case to case.”

The approach that was taken there has been summarised by MacDonald J in H v K (Return Order) [2017] EWHC 1141 (Fam) at [46] –[ 47]:

“46.

The law on the 'child's objection' defence under Art 13 of the Convention is comprehensively set out in the judgment of Black LJ in  Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] 2 FLR 1074 (and endorsed by the Court of Appeal in Re F (Child's Objections) [2015] EWCA Civ 1022) and I have regard to the clear guidance given in that case. In summary, the position is as follows:

(i)

The gateway stage should be confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in 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 his or her views.

(ii)

Whether a child objects is a question of fact. The child's views have to amount to an objection before Art 13 will be satisfied. An objection in this context is to be contrasted with a preference or wish.

(iii)

The objections of the child are not determinative of the outcome but rather give rise to a discretion. Once that discretion arises, the discretion is at large. The child's views are one factor to take into account at the discretion stage.

(iv)

There is a relatively low threshold requirement in relation to the objections defence, the obligation on the court is to 'take account' of the child's views, nothing more.

 At the discretion stage there is no exhaustive list of factors to be considered. The court should have regard to welfare considerations, in so far as it is possible to take a view about them on the limited evidence available. The court must give weight to Convention considerations and at all times bear in mind that the Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned, and returned promptly”.

47.

Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are authentically the child's own or the product of the influence of the abducting parent, the extent to which they coincide or at odds with other considerations which are relevant to the child's welfare, as well as the general Convention considerations (Re M [2007] 1 AC 619).”

In In re M (Children) (Abduction: Rights of Custody) (supra) when speaking of the discretion in child objection cases Baroness Hale said at [46]:

“In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances.”

In her position statement and oral submissions Ms Lubeya Ramadhan eloquently argued that:

Ms Ramadhan has not so much been instructed by the mother to make bricks without straw as to make bricks out of thin air. The mother’s primary argument is that the likelihood of an intolerable peril to the children arises principally because of her change of mind about her willingness to accompany them if a return was ordered. The court is always extremely hostile to having a gun held to its head and sceptical of forensically self-generated facts which are claimed to meet the legal test.

Let me be clear. All of the supposed grave risk of intolerable peril is a result of the mother’s unlawful and wrongful conduct. It would be a remarkable example of the triumph of injustice over justice, of wrong over right, if a mother could clandestinely relinquish her housing, pluck the children out of school, remove them to England in breach of a court order and then state that she will not accompany if they are returned, thereby enabling her to present them to this court as prospectively abandoned, homeless, unschooled and destitute with the result that a return order is refused on that basis.

I will not do so.

At para 60 the Guide states:

“Where assertions of grave risk based on economic or developmental disadvantages upon the return of the child are made, the analysis should focus on whether the basic needs of the child can be met in the State of habitual residence. The court is not to embark on a comparison between the living conditions that each parent (or each State) may offer. This may be relevant in a subsequent custody case but has no relevance to an Article 13(1)(b) analysis. More modest living conditions and / or more limited developmental support in the State of habitual residence are therefore not sufficient to establish the grave risk exception. If the taking parent claims to be unable to return with the child to the State of habitual residence because of their difficult or untenable economic situation, e.g., because his / her living standard would be lower, he / she is unable to find employment in that State, or is otherwise in dire circumstances, this will usually not be sufficient to issue a non-return order.”

I agree with this fully.

The Republic of Ireland is a modern, liberal democracy with a strong emphasis on social justice. In the absence of any evidence about its laws, I shall assume they are the same as ours and that were the mother and the children to present themselves as homeless to the authorities they would be rehoused and provided with benefits to support themselves at a level sufficient to meet their basic needs. I have no doubt, if the Irish court has not dealt with the interim situation before their arrival, a hearing would be convened very shortly thereafter. An email from the father’s Irish solicitor confirms this.

In my judgment the mother’s claims in support of her Article 13(1)(b) defence, taken at their highest, do not satisfy me that it is more likely than not that on their return to the Republic of Ireland the children would be either be exposed to an intolerable level of physical or psychological harm or otherwise placed in an intolerable situation. On the contrary, I am satisfied that they would not be either thus exposed or thus placed. I do not therefore need to weigh the parties’ respective cases to evaluate the mother’s prospects of success of proving the exception as her case taken alone comes nowhere near doing so.

In the Cafcass report both children are recorded as saying to the FCA that they did not want to return to Ireland. In their letters to me they said respectively (J) “I don’t wanna go back to Ireland” and (E) “I want to stay here and for him to leave us alone”. The FCA states in her report:

“As documented above, J and E, expressed a wish not to return to Ireland to live”

She further recorded:

“should the children summary return be directed, E questions whether Ms A will return to Ireland with them. This mirrors the sentiment Ms E expresses at the conclusion of her statement”

In the concluding paragraph of her statement the mother said:

“I have been asked to think about protective measures to help me return to Ireland with my children if they are returned but the more, I think about it the more I cannot think of any protective measures this father can put in place that would help and I do not see how I could return.”

In her written and oral argument Ms Papazian submitted that:

“…a fair reading of the Cafcass report shows that these children do not object to a return to the Republic of Ireland. They make no complaint against Ireland and express their loss of their lives there. Such complaints as they make have amount to preferences and even those have to be filtered in the context that each have been overly involved in the adult disputes by their mother”

During argument I suggested that Mr Papazian was perhaps guilty of the heresies identified and extirpated by the decision in Re M. That decision arrested the practice of analysing children’s objections to see if they were in accordance with the objectives of the Convention. In B v B at [19] I stated that:

“The objections in question must be of appropriate maturity having regard to the terms of the Convention and they must be an objection to being returned to the homeland for the purposes of the courts there working out as soon as may be possible what is in the child's best interests. That is not the same as an objection to being returned to Lithuania per se ”

This approach I now recognise as being quite wrong. The question is a simple, literal one. Does the child object to being returned? All the old arguments about the objection being the wrong kind of objection, or that the objection was not really an objection but rather a wish or a preference are now consigned to oblivion. So I confess to being slightly surprised to hear them recycled by Ms Papazian.

The first two stages of the Re M exercise are clearly satisfied. The children have objected and they are of a sufficient age and degree of maturity for it to be appropriate for their objections to be listened to, and taken account of, by me. Their objections are not childish nonsense.

The two preconditions being satisfied I am given a discretion to refuse to order their return.

In her submissions Ms Ramadhan argued:

It is clear to me that the children have been influenced in their views by their mother. The fact that E is aware that her mother’s stance is that she will not return with them should a return order be made is very telling. This factor significantly reduces the weight of the children’s objections. But even if that factor were not present I would not exercise my discretion in favour of a refusal to order their return. The life experience of children of this age is largely one of enforced submission to decisions taken by adults in their best interests, whether they like those decisions or not. Adults decide where they live, where they go to school, who their friends are, where they go on holiday, what they eat, what they wear and how they are allowed to entertain themselves. So if the court decides that they should be returned to their place of habitual residence for decisions about their home to be made there, they would naturally expect that to be yet another decision about their lives which they would have to accept, again, whether they liked it or not.

Put another way, irrespective of whether their wishes have been the subject of influence by their mother, I cannot see how, on the facts of this case, where the conduct of the mother has been so blatant, the wishes of the children could deflect the court from making the decision which justice cries out to be made. That decision reverses the mother’s wrongful and unlawful conduct and puts her back in the position from where she must approach the question of relocation lawfully and responsibly namely by making an application to the Irish court.

I do not accept as genuine the mother’s forensic stance that were a return order to be made she would not accompany the children back to Ireland. All the evidence is that the mother is an intensely loving parent even if her conduct in abducting these children was deplorable. I regard it as inconceivable that she would in effect abandon her children if they are ordered back to Ireland for the welfare decision to be taken by the court there.

For the reasons set out above I am not satisfied that the mother has proved either exception. Therefore, under Article 12, I must order the return of both children to the Republic of Ireland “forthwith”. Forthwith literally means immediately, but it is the practice of this court always to give some time for arrangements to be made to effect an orderly return.

I make an order that the children shall be returned no later than three weeks following the handing down of this judgment i.e. by 14 February 2023. This period should be sufficient for the mother to be able to make an application to the Irish court, which I repeat, has primary and exclusive jurisdiction over all welfare issues, for permission to relocate the children to England, and for an urgent interim order allowing her to remain here pending the substantive hearing.

It would appear that the mother would be entitled to legal aid to make that application and, as I as have stated, it would appear that the interim application could be heard very quickly. Nothing that I say in this judgment signifies any kind of steer from me as to what the result of such an interim application should be.

The order that I make today will require the return of the children by 14 February 2023 and will record the father’s undertakings as set out above. If, before that date, the result of an interim application in Ireland is that the mother is allowed by the Irish court to remain here pending the final determination of her substantive application then this order will be stayed and will stand dismissed on a final order being made in the Irish court granting her application.