This is the perfected version of a judgment delivered ex tempore on 17 January 2024 amended and approved in accordance with the guidance in Shirt v Shirt [2012] EWCA Civ 1029, [33-34]. The parties have been anonymised for reasons of privacy and confidentiality.

I am concerned with an application under the Child Abduction and Custody Act 1985 by the mother, (‘M), for a summary return order under the 1980 Hague Convention. The application concerns a child, XZR, born in the United Kingdom in April 2018 and who is now 5. The respondent is the father, (‘F’), who unlawfully abducted XZR to the United Kingdom in October 2023. M seeks XZR’s return to Lithuania. Following the order of Poole J dated 15 December 2023 summarily dismissing F’s defences based on the child’s objections (on the ground he is too young to express any objection) and settlement under Article 12, the only issues in the case are F’s claim that (a) there is a grave risk that XZR’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation under 13(b); (b) in any event, the court is not bound to order XZR’s summary return and should not do so in its discretion.

I conducted a final hearing of the application on 17 January 2024.

The parties met in 2016 when they were both living in England. At that time, M was studying Psychology at University, and met F while they were both living in London. The parties dated for one year and then started living together in 2017. M’s pregnancy was unplanned and their son, XZR, was born in the UK in April 2018. The parties have never been married but F is named on XZR’s birth certificate so shares parental responsibility with M.

M is a Lithuanian national; F is a Kosovan and Serbian national. XZR has Lithuanian and British nationality. The parties lived together with XZR in the UK until March 2019. The parties then agreed that XZR should move to Lithuania in 2019 to live with his maternal grandmother while M continued her studies in the UK. M then returned to the UK after leaving XZR with his grandmother.

M has been the victim of a domestic abuse by F as more fully explained, below. Following an assault in March 2019 M reported the offence to the Metropolitan Police: I have seen a copy of the letter from the police confirming details of the investigation. M later separated from F and returned to Lithuania. F had disclosed that he had previously been in prison following an assault on a previous partner and he pressured M to leave the jurisdiction so that the criminal proceedings in the UK against him would be discontinued. M has remained in Lithuania ever since, save for a few days in July 2019 and until this hearing.

On 29 October 2023 F abducted XZR from Lithuania and brought him to the UK without notifying M and in breach of Lithuanian court orders. XZR has been here ever since. M seeks his immediate return.

In early 2021 M commenced child arrangement proceedings in Lithuania. On 20 April 2021 the Lithuanian court made an interim order [380] for indirect contact to F, and alternate weekend direct contact. That order was unsuccessfully appealed by F. F then applied for leave to remove XZR from Lithuania to the UK for a week in each of July 2021 and August 2021 for a holiday. That application was refused. On 3 September 2021 the Lithuanian court made a further interim order [395], on F’s application to vary the April 2021 order. The court noted F’s inappropriate behaviour towards M.

In April 2022 F applied for the summary return of XZR from Lithuania to the UK, pursuant to the 1980 Hague Convention. That application was refused on 10 August 2022 by the Lithuanian court [408], on the basis that: (1) although XZR had been habitually resident in the UK at the time of his removal in 2019, F had consented to his return to Lithuania and therefore there had been no wrongful removal or retention by M (2) XZR had been living in Lithuania with his mother for nearly 3 years and was settled for the purposes of Article 12(2). In any event, (3) XZR would be at grave risk of harm if he was returned to the UK, so return would be refused in any event on an Art. 13(b) basis. The Vilnius Regional Court found that: “The evidence in the case therefore confirms that the Applicant, who is requesting the return of the child to his country of origin, has a tendency to be violent towards others. It should be noted that the Applicant has been found to use violence in the presence of his minor son.” In reaching that conclusion the Court took into account the following at [89-91]:

On 15 September 2023 Lithuanian social services prepared a report in relation to XZR, after having undertaken direct work with him [475]. This records at [485] “he does not always want to talk to his dad, that his dad yells and no one yells at home, and that he uses all sorts of ugly words. The child also stated that he remembers when his dad his mother’s car, that he was scared, felt bad, was afraid, and knew that he should not behave like that, and that he does not want to meet and is still afraid of his dad”. The report also notes that in his interactions F used inappropriate language and said ‘I don’t give a shit about Lithuanian law’ and would ‘kill all Lithuanians for his son’.

On 14 October 2022, in the context of the criminal investigation against him, F was ordered to surrender his ID and to report to the police station and not to contact M or XZR.

On 20 October 2023 [512] the Lithuanian court granted M’s application for F’s contact to take place at a mediation centre, rather than at her home, for two days a month for two hours per day and refused F’s cross applications, which included applications for: a transfer of XZR’s residence to F’s care; for M to hand over XZR to F; for M to pay F child maintenance of 420 euros each month; and for M to have contact with XZR from 10am to 6pm a day at F’s home, on the last weekend of each month.

On 24 October 2023 the Lithuanian court made a non-molestation order against F for three months [533] citing, the allegations of assault and threats to kill and harm M made on 9 July 2022; messages sent on 10, 11 14 July, 23, 28, 29 August making similar threats.

On 29 October 2023 F wrongfully removed XZR from Lithuania during agreed contact (overnight contact, which M had felt pressured to agree to notwithstanding the recent order of the court). M holds XZR’s Lithuanian passport and his expired British passport. F has exhibited a copy of a new British passport for XZR, with an expiry date of 2025, to his C100 application. F has therefore applied for a further passport for XZR, without M’s knowledge or consent.

On 4 November 2023 [543] the Lithuanian court made orders that: i. XZR’s place of residence is with his mother; and ii. that F is prohibited from having in person contact with XZR. On 15 November 2023 [559] the Lithuanian court fined F and his legal representative 4500 Euros for abuse of process. The court dismissed an application by F to dismiss the proceedings in Lithuania or transfer them to the UK. On 5 December 2023 [576] the Lithuanian court made a final order determining that XZR’s place of residence was with his mother and regular remote contact between F and XZR.

On 22 July 2023 F applied to the Family Court at Barnet for a child arrangements order (‘CAO’), prohibited steps order (‘PSO’) and specific issue order (‘SIO’) [263]. On 30 October 2023 [319] F applied within his Children Act proceedings for a PSO to prevent M from removing the child from the jurisdiction. That application was refused by HHJ Jacklin KC by order dated 8 November 2023 [346]. The order recites that: i. M attended remotely, in person, from Lithuania with an interpreter; ii. it was the judge’s view that the child is habitually resident in Lithuania and had been wrongfully removed by F without M’s consent; iii. the court therefore had no jurisdiction to make anything other than protective orders and did not do so, noting that the child should be returned to Lithuania immediately; iv. that F’s case that the court should exercise jurisdiction on the basis of parens patriae was fundamentally misconceived; v. it was noted that this 1980 Hague Convention application was to be made. On 12 December 2023 F applied to the Family Court at Barnet for further orders [349]. That application was considered by HHJ Karp on the papers on 14 December 2023 who noted that the application was an attempt to appeal the order of HHJ Jacklin KC dated 8 November 2023 and dismissed the application as being totally without merit [362];

F has referred to two further applications in his witness statement, namely: an application for non-recognition of the orders of the Lithuanian court dated 4 November and 5 November 2023 [26]; and an application for the courts of England and Wales to request that the courts of Lithuania transfer jurisdiction here, pursuant to Art. 8 of the 1996 Hague Convention [38]. Neither application was known about by M prior to receipt of that document. Neither application (which are both fundamentally misconceived) falls for consideration in these proceedings.

M’s application was issued on 30 November 2023 [4]. On 30 November 2023 the matter came before Morgan J ex-parte [14]. The judge made a passport order and adjourned the matter to 5 December 2023, and required F to file an answer on 4 December 2023. 11. On 5 December 2023 [18] the matter came before me for an inter-parties hearing. F attended in person. The judge listed the matter for a final hearing on 17 January 2024; listed a further short hearing to consider any further directions that are necessary in light of F’s Answer (to be filed on 13 December 2023) and directed that F make the child available for indirect contact every at 4pm UK time for 20 minutes. On 15 December 2023 the matter came before Poole J [22], F having only filed his Answer the evening before. The judge summarily dismissed F’s defence based upon settlement and upon the child’s objections and made directions for final hearing, including special measures for M’s benefit. He continued the order for indirect contact between M and XZR, with an order that F not be present, or speak to or engage with M during indirect contact. Unusually, this order was endorsed with a penal notice.

In addition to the incidents I have already documented, F has made a number of threats in video calls recorded by M that if she attempted to remove XZR from the jurisdiction of England and Wales, then he would “take [XZR] to Kosovo” so that she will “never be able to find him” [79/48], and has said (in a further recorded video dated 8 November 2023) that he does not care about court orders either in Lithuania or in England [81/55]. F denied making these threats. The first video was then played in open court in which record F threatening to take XZR to Kosovo and that M would never see him again, saying ‘don’t try, I’ll fuck you up, I’m not playing games’. This took place in the presence of XZR who can be heard crying in the background.

F has also been highly abusive to M during indirect contact ordered within these proceedings as Whatsapp messages exhibited at [140/22] and [178] demonstrate.

At the outset of the hearing Ms. Gaunt for F rose to make three disclosures, as she was right to do. First, F had instructed her that he would not comply with any return order that the court may make and would not allow the child to be returned to Lithuania. Second, when asked about XZR’s location he said ‘he is not at school; he is unwell’, and when mention was made of police involvement F said they ‘wouldn’t be able to find him’. He later contradicted this by saying that XZR was at home with his paternal grandmother. Third, he made some further generalised threats against the mother. In the light of those threats I informed F he may be in contempt of court and ordered his arrest to prevent him from taking any further steps that might lead to him frustrating any court order by the child being hidden or further removed. I also made a collection order for XZR’s immediate collection by the tipstaff. In the event the child was found by the tipstaff and brought to court shortly before the hearing had ended. I return to the contempt issue at the end of this judgment.

For F, Ms. Gaunt submitted that there was a ‘grave risk of harm’ to XZR if he was returned to Lithuania for three reasons:

As to ‘protective measures’ at stage 2 of the Article 13(b) exercise

Mr. Langford for M submitted as follows:

F’s central complaint is the Lithuanian Court has limited his contact with XCR and mother has alienated him from his father. However,

As regards F’s other two submissions of ‘grave risk of harm’:

If there is a grave risk, the protective measures are available to meet that risk. M has undertaken to comply with the orders of the Lithuanian Court dated 5.12.23. The Lithuanian Courts will enforce those orders. Lithuania is a 1996 Convention jurisdiction. Orders made will be enforced.

There is no need for an undertaking in relation to the criminal proceedings for the abduction. There is a criminal investigation on foot re abduction; the authorities want to interview the father but have not been able to do so. This is not a case where an undertaking not to prosecute is appropriate. Ordinarily such an undertaking is appropriate where the respondent is returning with the child; that is not the case here. Whether there should be a prosecution is entirely a matter for the Lithuanian authorities.

This is an abduction of the gravest possible kind involving child being removed in breach of an order with the use of deception and the F’s Lithuanian lawyers apparently being involved. This was a hot pursuit application by M including an ex parte order by Morgan J given the F’s own conduct and threats made by F to remove. The events in court today reinforce the need for the return order to be made.

Mr. Langford sought a return order and collection order to be made today to allow for F to return to Lithuania with XZR tomorrow. The Port Alert should be discharged and travel documents released to the mother today. Father’s travel documents should not be released until mother is out of the jurisdiction.

In this section I set out the relevant legal principles.

The underlying purpose of the 1980 Hague Convention, which is given effect domestically by the Child Abduction and Custody Act 1985, is to enable the ‘prompt return of children wrongfully removed to or retained in any Contracting state’ (Article 1). It is intended to provide a swift, summary procedure for a left-behind parent to secure the return of a child wrongfully removed to or retained in another country by the removing parent. Where the procedure is triggered the courts of the requested state are required to ‘act expeditiously’ (Article 11), if possible within six weeks of the request being made. (Footnote: ¹ ) Once a request is made, the courts of the requested state ‘shall not decide on the merits of rights of custody until a determination has been made that the child is not to be returned’ (Article 16).

The Courts of the requested state must be satisfied that: the request falls within the scope of the Convention, namely that the child was under 16 and was ‘habitually resident’ in the requesting state at the date of their removal or retention (Article 4); and that the removal or retention was ‘wrongful’, namely that it was in breach of the custody rights of the left-behind parent and that those rights were actually exercised or would have been exercised but for the removal or retention (Article 3). Where these criteria are satisfied, there is a prima facie duty to return the child if less than a year has elapsed since the wrongful removal or retention or more than a year has passed and it is not demonstrated that the child has now settled in their new environment (Article 12).

The Courts of the requested state are not obliged to return the child if one of the defences in Article 12 or 13 are made out. Return under the Hague Convention may otherwise be a breach of Article 3(1) (Footnote: ² ) of the UN Convention on the Rights of the Child (UNCRC) and Article 8 of the European Convention on Human Rights (ECHR) in circumstances such as those considered by the Grand Chamber of the European Court of Human Rights (ECtHR) in Neulinger v Switzerland (2012) 54 E.H.R.R. 31. Following Neulinger,the Supreme Court clarified the interrelationship of the Hague Convention with the UNCRC and ECHR in E (Children), Re (Abduction - Custody Appeal) [2012] 1 A.C. 144. At [13-17] of their speech on behalf of the Court, Baroness Hale and Lord Wilson observed that ‘the fact that the Hague Convention does not expressly make the best interests of the child a primary consideration does not mean that they are not at the forefront of the whole exercise’. The Hague Convention is premised on the assumption that ‘if there is a dispute about any aspect of the future upbringing of the child the interests of the child should be of paramount importance in resolving that dispute’. It is also based on a second assumption, namely that ‘the best interests of the child will be served by a prompt return to the country where he is habitually resident’. This latter assumption may, however, be rebutted, ‘albeit in a limited range of circumstances, but all of them inspired by the best interests of the child’, namely:

Where one of these defences is established, the assumption that it is in the best interests of the child to be returned to the requesting state ‘may not be valid’: Re. E, [16]. Accordingly, the Courts of the requested state will then have a discretion whether to accede to or refuse the request to return the child, to be exercised in accordance with the principles at paragraph 38, below.

However, ‘these limitations on the duty to return must be restrictively applied if the object of the Convention is not to be defeated’. Moreover, ‘there is a particular risk that an expansive application of Article 13(b), which focuses on the situation of the child, could lead to this result’: Re. E, [30], citing the explanatory report to the Hague Convention, para 34. This has implications for the procedure that the Court is to undertake when determining Hague Convention proceedings, including the following.

A parent opposing return may establish a defence under Article 13(b) if they prove that ‘there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’. The Supreme Court in E held at [31-34] that Article 13(b), by its very terms, is of restricted application. In addition to the burden being on the parent opposing return to establish the defence:

In determining the Article 13(b) issue the court should adopt the following approach.

Where the court is satisfied one of the defences in Article 13 is made out it is no longer under a duty to order the return of the child to the requesting state under Article 12. However, the court retains a discretion to return the child. This discretion is ‘at large’, that is to say it is not exercised within limits set down by the Hague Convention: per Baroness Hale in Re. M (Abduction: Zimbabwe) [2008] 1 FLR 251, giving a speech with which the rest of the House of Lords agreed: [43]. The underlying purposes of the Hague Convention are relevant to the exercise of the discretion, but should not always be given more weight than other considerations, which may include wider considerations of the child’s rights and welfare: [43]. The exercise of discretion will be determined by the court’s findings as to why there is no obligation to return the child. For example, where the decision has been taken under Article 13(b) that there is a ‘grave risk’ of harm to the child if they are returned it will be ‘inconceivable’ that the court will nevertheless in its discretion order their return: [45]. Different considerations may apply in consent cases, although as a general principle ‘the further one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be’: [44].

The relevant principles I will apply in making findings on the evidence are these:

Against that backdrop I can articulate my decision on the issues in relatively short compass.

It is for F to show, on the balance of probabilities, that there is a grave risk that XZR’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation for the purposes of Article 13(b). I reject that submission. My reasons are these (and applying the two-stage approach advised in Re. B, [2022] 3 WLR 1315, [70-71], above paragraph 31.3).

Stage one: is there a grave risk of harm? The claimed risk does not come close to the necessary threshold of ‘grave risk of harm’ for Article 13(b) purposes. The Lithuanian Courts in their final decision of 5 Dec 2022 imposed restrictions on F’s contact with XZR because of his own violent and abusive behaviour towards M, the child and his paternal grandparents. That was also the basis for the Lithuanian Court’s dismissal of F’s Hague Convention application in August 2022 on Article 13(b) grounds. The restriction is not total; the order allows for indirect contact on a regular and frequent basis. In any event it is not final for all time; if F’s behaviour changes then the court may vary its own order. I am bound to give effect to the Lithuanian Court orders other than in circumstances provided for by Article 23 of the 1996 Hague Convention or Article 20 of the 1980 Hague Convention. No such circumstances arise here. In particular I reject the suggestion that F was not notified of the hearing; the judgment and order record he was present and made representations through his lawyers. Lithuania is a contracting state of the ECHR and there is nothing to suggest that the order made on 5 Dec 2022 is incompatible with F’s convention rights. I also reject the other bases advanced by F that there is a ‘risk’ for the reasons given by M.

Stage two: are there adequate and effective protective measures that will avoid that risk? In view of my conclusion on stage one it is not necessary to consider whether protective measures are necessary to guard against that risk.

In view of my conclusions that F is unable to establish a defence of ‘grave risk’ under Article 13(b), I am bound to order XZR’s return to Lithuania. In any event, I am satisfied the defence was wholly unfounded and unjustified and simply further evidence of the father’s willingness to exploit and abuse the legal system in his desire to undermine or destroy M’s relationship with XZR.

For the above reasons, in my judgment:

The application is accordingly allowed.

I have explained how at the outset of the hearing on 17 January 2024 F expressed, through counsel, his intended refusal to comply with any order that the court might make and intimated that he had taken steps, or would take steps, to frustrate any order by hiding and removing XZR from the jurisdiction to Kosovo. In those circumstances I concluded that F may be guilty of contempt in the face of the court, namely ‘conduct that denotes wilful defiance of, or disrespect towards, the court or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself’: Solicitor General v Cox [2016] EWHC 1241 (QB) ('Cox'), [67]. I was also concerned that he would take steps to implement a pre-arranged plan to remove XZR to Kosovo if I made a return order. He has made such threats in the past and, of course, abducted XZR from Lithuania to the UK in October of last year. I formed the view that the threat of further abduction was real and imminent. I had also been informed that he was behaving in and outside court in an aggressive and intimidating manner which was making M extremely uncomfortable. I arranged for the tipstaff and for security officers to be present in court and then notified F, in open court, that his expressed refusal to comply with any court order, and his stated intention to frustrate any order if made, might constitute a contempt of court and that he was under arrest. I ordered him to surrender his phone to the tipstaff so that he could not contact anyone else who might frustrate the court’s order. F was permitted to remain in court during the hearing but I remanded him to the cells between the end of the hearing and the giving of judgment shortly after 3 o’clock. When I returned to court to give judgment I was informed that the tipstaff had been able to locate XZR and was on her way to the RCJ and would be arriving shortly. In due course XZR was reunited with his mother who plans for them both to fly to Lithuania on January 18.

Following judgment I invited submissions from the parties on what steps should be taken with regard to F’s apparent contempt. M did not wish to make a contempt application under FPR 37 but was concerned that F might take steps to frustrate her return to Lithuania with XZR if he was released. F submitted, through counsel, that his legal representatives had ‘misunderstood’ his instructions and that he had, and has, every intention of complying with any order of this court and it was always his position that XZR was always at home in the care of the paternal grandmother or nearby. I do not accept this as his earlier defiance was consistent with his attitude to the Lithuanian courts as expressed in video calls that I have seen and given his willingness to lie when it suits him (as witness his denial that he had threatened to remove XCR to Kosovo in a video call to F, a lie exposed in the 17 seconds that the video was then played in court). I conclude his ‘new’ instructions were a fabrication and I remain concerned that F will take steps to disrupt XZR’s removal if he possibly can.

I have to determine, first, whether this is an appropriate case to refer to the Attorney-General or for the Court to initiate proceedings of its own motion by summons under FPR 37.6. Of the three mechanisms by which contempt proceedings may be brought, the hierarchy is (a) the person in whose favour an order was made; (b) the Attorney-General; (c) the Court, but only ‘in exceptional cases of clear contempts . . . in which it is urgent and imperative to act immediately’: Bedfordshire Police v U [2014] Fam. 69, Holman J, recently considered in Isbilen v Turk [2021] EWHC 854 (Ch) in the context of proceedings under CPR 81, which mirror those under FPR 37. The Court should therefore be slow to initiate proceedings of its own motion under FPR 37.6. However, I am satisfied that I should do so. In my judgment permission would be granted under FPR 37.3(5) if an application was made, and I see no reason why the same approach should not be applied by the Court in deciding whether to initiate proceedings of its own motion by way a summons under FPR 37.6(3). The relevant factors were considered in EBK v DLO [2023] 4 W.L.R. 51, [72], namely: the strength of the case; the public interest; the proportionality of proceedings; and the overriding objective. I would add that the best interests of the child should also be a relevant factor.

Applying those considerations: by his initial stated refusal to comply with the court’s order, and his threat to frustrate that order, F ‘may have committed’ a contempt in the face of the court (FPR 37.6(1)); it is appropriate to proceed against F by way of summons given the urgent need to prevent F from taking steps to carry out his threat to frustrate the court’s order by disrupting XZR’s return, particularly given F’s history of violence against M; there is a strong public interest in the court making clear that its orders are to be respected and not frustrated; it is in the best interests of XZR that the court take steps to protect against the risk to his removal; and such proceedings are a proportionate means of achieving the objective of both protecting the interests of justice and preventing F from frustrating the court’s order by disrupting M’s removal. I therefore direct the issue of a summons under FPR 37.6(3).

Second, I must decide whether to remand F in custody or to release him on bail. In my judgment there are substantial grounds for believing that, if released on bail, F would follow M and XCR or otherwise harass or assault them and seek to frustrate the court ordered removal process. I therefore refuse bail and F will be remanded in custody. The matter will return for hearing on 18 January 2024 for directions and consideration of bail.

That is my judgment.