KRM v VWT

The principal application before me concerns three children aged 6, 3 and 2 (‘the elder children’). In early 2025, they were living with their mother and father in Australia. With Father’s consent, Mother brought the elder children to England for a holiday, staying with Mother’s family. On 12 February 2025, the date on which they were supposed to return to Australia, Mother messaged Father to inform him that they were not returning that day. There is no dispute, and I am satisfied, that this was wrongful retention for the purposes of Article 3 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the ‘Hague Convention’), in breach of Father’s rights of custody. Nor is there any dispute that the elder children were habitually resident in Australia immediately before this wrongful retention. Accordingly, Father is entitled to a summary return order, unless Mother can establish one of the narrow exceptions. Mother argues that the Article 13(b) exception is made out, namely that the elder children would be at grave risk of harm if they were to be returned to Australia. That is the first issue I must consider.

In addition, however, I must consider a more unusual application. Mother was pregnant when she brought the elder children to England, and has since given birth to a daughter, to whom I shall refer as ‘Lois’. Two weeks before this final hearing of the Hague Convention application, Father issued a further application under which he sought what he describes as a summary return order under the inherent jurisdiction – an order that Lois be ‘returned’ to Australia, a place she has never been and where, as is common ground, she is not and has never been resident (the ‘Lois application’). Mr Hames K.C. on behalf of Father made clear that Father is not seeking any final decision as to Lois’s care or welfare; Father seeks only an order that Lois be ‘returned’ to Australia, so that the Australian courts can conduct a full welfare assessment of her best interests alongside those of the elder children.

After this judgment was handed down, a further issue arose as to whether, after I decided a return order should be made, I still had jurisdiction to order interim contact between Father and the elder children. I deal with this issue in a post-script, beginning at paragraph 68 below.

The applicant Father is Australian, and the respondent Mother is English. They met in 2017 while holidaying in New Zealand. In late 2017, Mother moved to Australia to live with Father. In late 2018, they came to England for a visit, and their eldest son was born here. Father returned to Australia in December 2018, with Mother and child returning a couple of months later. In February 2022, their second child, a girl, was born in Australia. In June 2023, their third child, a boy, was born in Australia.

Throughout the elder children’s lives, with the exception of short periods, they have lived with both parents. Mother has been their primary carer, while Father was the primary earner, although Mother also earned. The elder children hold both English and Australian nationality, and Mother has permanent resident status in Australia.

As I have indicated, in January 2025 Mother and the elder children travelled to England for a planned holiday. Mother was about 5 months pregnant at this time. They remained here after the intended return date of 12 February 2025. As I have indicated, it is common ground that Mother wrongfully retained the elder children from that date.

Father came to England in late March hoping to see his children. He was not welcomed by Mother. There is a dispute as to what occurred when he went to the property where Mother is living with the children near her extended family, which I need not resolve. Following that incident, on 14 April, Mother obtained, without notice to the Father, a non-molestation order against him. Father returned to Australia on 16 April. At the return date on 13 May, the non-molestation order was discharged by consent, on Father undertaking to give Mother seven days’ notice of any return to the United Kingdom.

Lois was born in May 2025. Mother did not inform Father of the birth, but within three days sought a ‘lives with’ child arrangements order, and a prohibited steps order preventing the removal of any of the children from the jurisdiction.

Father issued the Hague Convention application in respect of the elder children in June 2025. Mother remains living with the four children in a property near her extended family.

Article 13 provides that:

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 –

…

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 leading authorities on the scope of the Article 13(b) exception remain the decisions of the Supreme Court in Re E (Children: Custody Appeal)[2011] UKSC 27, [2012] 1 AC 144 (‘Re E’) and Re S (A Child) (Abduction: Rights of Custody)[2012] UKSC 10, [2012] 2 FLR 442 (‘Re S’). In the former case, Baroness Hale and Lord Wilson noted (at [32]-[36]) that the burden of proof lies on the person who opposes the child’s return to make good the exception, within the limitations of a summary process; that the risk to the child must be ‘grave’, which is a function of both the likelihood of such risk eventuating, and the seriousness if such risk were to eventuate; that Article 13(b) is looking to the future, and specifically the situation the child would be in if the child were to be returned forthwith to their home country. Baroness Hale and Lord Wilson adopted the earlier dictum that ‘intolerable’ means ‘a situation which this particular child in these particular circumstances should not be able to tolerate’. They observed:

Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself.

Baroness Hale and Lord Wilson approved, as part of the court’s general process of reasoning (see Re S at [22]) a two-stage process, under which the court first asks whether, if the allegations were true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation; and then, if there would be such a risk, how the child can be protected against such risk(s).

In assessing whether there is a grave risk of harm, the court does not make findings of fact. Rather, the court makes reasoned and reasonable assumptions with respect to the maximum level of risk, having regard to the nature, detail and substance of the allegations made: In Re A (Children) (Abduction: Article 13(b)) [2021] EWCA Civ 939, [2021] 4 WLR 99 at [94].

A particular issue raised in this case is the possibility that if a return order is made, and Mother accompanies the children to Australia, that would lead to the deterioration of Mother’s mental health, in turn causing a grave risk of harm to the children. If this is so, it does not matter why such deterioration would result. In Re S, Lord Wilson explained at [34]:

The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned.

A further issue arising in this case concerns Mother’s indication that, if the elder children were returned to Australia, she would refuse to accompny them. In R (Child Abduction: Parent’s Refusal to Accompany) [2024] EWCA Civ 1296, [2025] 1 FLR 1225, Peter Jackson LJ held that:

As regards proposed protective measures, these must be effective.

In addition to the above, in considering the various elements of the Article 13(b) exception, I am assisted by the Guide to Good Practice under the Hague Convention, published in 2020 by the Hague Conference on Private International Law. As Moylan LJ held in Re C (A Child) (Child Abduction: Parent’s refusal to return with child) [2021] EWCA Civ 1236 at [51]: ‘The Guide is an important resource and the task of a judge in these difficult and complicated cases may well be supported by reference to it.’ The Guide to Good Practice includes the following, under the general heading of ‘Examples of assertions that can be raised under Article 13(1)(b):

Mother alleges a number of different strands of risk, which cumulatively are said to give risk to a grave risk within the meaning of Article 13(b). As expressed in Mother’s skeleton argument:

There are four elements to her defence on these facts, namely that a return would:

a.

firstly, expose the children to a grave risk of harm by way of exposure of their mother to domestic abuse by their father;

b.

secondly, expose the children to a grave risk of physical and psychological harm if in the care of their father;

c.

thirdly, place the children in an intolerable situation because of the risk to them caused by a deterioration in their mother’s mental health if she were to return with them to Australia and/or due to separation from their sister Lois; and/or

d.

fourthly, would place the children in an intolerable situation if they travel to Australia without their mother and are separated from her and/or their younger sister, Lois.

I begin by taking each of these strands of the Article 13(b) defence separately.

Mother’s case is that, during their relationship, Father subjected her to domestic abuse, including coercive and controlling behaviour, emotional abuse, financial abuse and sexual abuse. In Mother’s skeleton argument, thirty indicative examples of this alleged abuse were identified, but these are themselves only a summary of allegations covering 70 paragraphs over 14 pages of Mother’s first witness statement. These allegations include allegations of abusive behaviour by Father towards Mother in the presence of the elder children.

Father, who denies the allegations made by Mother, does not contend that Mother’s allegations can safely be discounted. I accept, therefore, that if effective protective measures are not put in place, and Mother accompanies the elder children to Australia, the risk of a repetition or continuation of the domestic abuse alleged, including in the presence of the children, would put the children at grave risk of harm both directly and indirectly.

Separate to the allegations of domestic abuse, Mother alleges that Father has put the elder children at direct risk of harm. This could be particularly significant if the elder children were to return to Australia without Mother. Indeed, Mother contends that the risk of harm to the elder children would be so great if they were to be put into the care of their Father, that if a return order were to be made, the children would need to be placed in foster care in Australia.

In support of this contention, Mother alleges that, despite Father’s significant vision impairment, he would ‘often place [the children] on the back of [a] pedal bike when riding in public and they would not have helmets on’. She says Father once drove the eldest child in a gulf buggy on a public road. He would run the bath for the children using only hot water. He told the eldest child ‘that he was his favourite child and cause a clear division between the children for no reason’. He once shouted at the eldest child, then aged 6, to ‘get your shit together’. Mother says that Father refused to fund an autism assessment for the eldest child, and did not understand the importance of routines for children.

Taking these allegations together, I do not consider that, if the children were to be placed in the care of Father they would be at such risk of harm that they would need to be placed in foster care.

Mother says that, if she were to return to Australia with the elder children, her mental health would deteriorate such as to put the elder children at risk that she could no longer care for them safely.

I do not consider that this strand of Mother’s case is supported by the evidence.

I received a psychiatric report on Mother prepared by a consultant psychiatrist, Dr Sumi Ratnam. Dr Ratnam was hindered by the absence of medical records from Australia which Mother had been instructed to produce. Dr Ratnam noted that Mother’s description of her own mental health was not consistent with the UK maternity records, in which on various dates between March and June 2025 Mother denied feeling down, depressed or hopeless. Dr Ratnam’s opinion is that Mother fulfils criteria for a diagnosis of depression, and of generalised anxiety. Dr Ratnam took the view that it was ‘not possible to predict the extent of deterioration but [Mother’s] account indicated that her mental health has impacted on her parenting in this country’. However, as an indication of the limited risk which Dr Ratnam perceived, Dr Ratnam considered that the mental health interventions proposed by Father as protective measures were appropriate, and made no recommendations for any additional interventions.

For these reasons, in my judgment, Mother has not made out her case that the children would be at grave risk of harm by reason of a deterioration in her mental state if they were to live with her in Australia.

As I have held, the evidence does not, in my judgment, support the conclusion that if Mother were to accompany the elder children to Australia, her mental health would by likely to so deteriorate that she would be unable to care for the children safely. However, I accept that a fear of such deterioration would be a reason why Mother might not return. Indeed, Mother says that if a return order is made in respect of the elder children, she would not return to Australia with them.

As was noted by Moylan LJ in R (Child Abduction: Parent’s Refusal to Accompany) (see paragraph 14 above) it is unusual for the primary carer of a young child to choose not to accompany a child who is ordered to return. Nonetheless, Mother’s witness evidence is unambiguous. She says in her statement from August 2025:

It breaks my heart to think of the children being placed in that situation, but I do not have the mental strength to return to Australia and I will simply be unable to cope with life in Australia due to my mental health and my fear of [Father] given the way in which he has treated me…. I fear that if I return, this would lead to a severe decline in my mental health which would ultimately impact the children far worse than if they were to be looked after by the state.

…I simply do not have the mental strength to return to Australia with the children, without any support at all, to then face continual abuse, pressure and control from [Father] and ongoing uncertainty, including financial uncertainty, together with Court proceedings Australia.

Moreover, there is the particular position of Lois. In Mother’s most recent statement, from last week, she said this:

[Father] appears to insinuate that I wish for my children to be separated. To be clear, I do not want any of my children to be separated, and I am heartbroken that I am even having to consider this. Sibling relationships are incredibly important, and all four of my children share a special bond with on another. [The elder children] absolutely love [Lois], despite all being very young themselves, and [Lois] is always giggling and smiling at her older siblings. I have been placed in an impossible situation, and it is not a decision I have arrived at lightly, but I cannot and will not subject [Lois] to the same suffering that me and my other children have had to endure at the hands of [Father], even if that means separating her from her siblings. No matter what happens, I have no intention for [Lois] to go to Australia. She has a loving and caring home here in the UK, and a particularly close bond with my mother. I have found it difficult to bond with [Lois] with everything that has gone on, but it does not mean that I do not love her and care for her deeply. It is because of that love and placing her needs first that I can categorically say whatever happens in the Hague proceeding with my eldest three children, [Lois] will remain in the UK. My mother is better placed to care for [Lois], as it would be impossible to work having a six month old and it would not be in [Lois]’s best interests not to be in one adult's care whilst she is so young.

If Mother’s stated intention regarding Lois is right, this provides a further reason why Mother might not return with the elder children to Australia. Mother would be in the invidious position of choosing between separating from her 6 month old child, or separation from her three elder children (who are themselves only aged 6, 3 and 2).

Nonetheless, the evidence that Mother would not accompany the elder children to Australia if the elder children were returned there is not all one way. When Mother was interviewed by Dr Ratnam in mid-October 2025, some time after her August statement, Mother’s position was much more ambivalent than it had been. Mother said she did not know if she would go to Australia if the elder children returned (‘I’m just hoping they don’t go… maybe someone else can go with them’), and said she found it hard to think about this possibility. That strikes me as realistic: Mother may not really know what she wants to do until after any decision is made.

Mr Hames K.C. on behalf of Father submits that Mother’s stated intention not to return to Australia is ‘an entirely tactical decision’. I consider there is likely to be at least an element of that here. I do not doubt that Mother would much prefer to remain in the UK, with all her children and her extended family. With that objective, she has shown herself, in my judgment, to be willing to act tactically. She has sought to separate the elder children from Father, and diminish his role in their lives. She issued an application for a child arrangements order regarding all four children within just a few days of giving birth to Lois, and without even informing Father of the birth. Mother named Lois, including giving her a different surname to her siblings, without consulting Father. I regard the submission that the elder children would need to be in foster care if they were to return to Australia as being overblown, and intended to minimise the prospect of a return order being made. And, Mother has criticised Father for being uninterested in contact with the children since she came to the UK, when the contemporaneous messages between Mother and Father do not support such criticism. Though there were ongoing communications between Mother and Father, apparently civil, when Father called multiple times on the second child’s birthday, Mother did not take his call. Father repeatedly sought to discuss contact with the children, but Mother did not respond. Although Mother has complied with court orders concerning contact between the children and their Father, she did little or nothing to promote such contact before being ordered to do so.

Overall, I remind myself that I am not making a finding of fact regarding what Mother would do if a return order were made in respect of the elder children, I am only assessing the degree of likelihood of Mother not returning, and the impact of that decision on the elder children if she were so to decide. Similarly, I am not deciding whether, if Mother did return to Australia, she would leave Lois behind, but only the likelihood of that, and the impact of that on the elder children.

Taking matters in the round, I consider that, if no effective protective measures were in place, it is likely that Mother would not return with the elder children, and Lois would remain in the UK (subject to the Lois application, to which I turn later). I accept that, absent any protective measures, Mother would not wish to return to Australia where she would have no family support, and, at least in the immediate term, would be dependent on the goodwill of Father for accommodation and financial support. The elder children would therefore be separated from their Mother and from Lois, for the first time in their lives. For the second and third children, this would mean ending their breastfeeding which has recently reduced but still continues at night, on occasion.

However, I do not consider that this likely separation from their Mother, or from Lois, would be such as to constitute a grave risk within the meaning of Article 13(b). The elder children would not be left without care in Australia, as they could be cared for by Father, with whom they had always lived until they were wrongfully retained in the UK, in the family home with which they are familiar. While separation from their Mother would of course cause distress, especially as Mother is, and has always been, their primary carer, this would not be, in my judgment, be such as to amount to a situation which they should not be able to tolerate. The elder children would be in a country where Mother has permanent resident status. They would of course miss their baby sister, but again, in my judgment, this would not, even in combination with their separation from their Mother, amount to a grave risk of harm.

For these reasons, I consider that the allegations of domestic abuse against Mother (on which, of course, I make no finding of fact) would, if Mother were to return to Australia with the elder children, present a grave risk to them within the meaning of Article 13(b). I do not consider, by contrast, that Mother has established that living with Father, if Mother chose not to return to Australia, would present a grave risk of harm to the elder children. I consider that there is a significant prospect that, absent protective measures, there is a likelihood that Mother and Lois would not accompany the elder children to Australia, but I do not consider that that would present the elder children with a grave risk of harm. Overall, however, given the uncertainties that surround these various risks, I cannot confidently discount the possibility that – absent effective protective measures – the elder children would suffer a grave risk of harm if they were to be returned to Australia.

The protective measures and ‘soft landing’ measures offered by Father by way of undertaking were summarised in his skeleton argument as follows:

In the course of his oral submissions, Mr Hames K.C. on behalf of Father indicated that he would be willing to extend the three months of rent referred to in items (h) and (j) above to six months.

Father submits, having taken legal advice, that the faster and more efficient route for the combination of undertakings above to be mirrored in an Australian court order is by way of a consent order in the Federal Circuit and Family Court of Australia (‘FCFCOA). Once made, such orders are binding and enforceable in Australia as Australian court orders. I understood Mother to accept this, and I am aware that Australia is a common law jurisdiction which treats undertakings much as in the UK. Accordingly, I am satisfied that these proposed measures are effective in the sense of being readily enforceable against Father if they are breached.

As for the scope of the undertakings offered:

As I have indicated at paragraphs 42(5) and 42(6) above, Father’s undertakings will not be the only protective measures in place. I can and do also rely on the powers of the Australian state – the courts, the police, social services, and the like – to keep the elder children safe. As MacDonald J held in AT v SS [2015] EWHC 2703 (Fam), [2016] 2 FLR 1102 at [34], ‘it is well established that in judging whether there is a grave risk following return for the purposes of Art 13(b) of the Hague Convention, the court should accept that, unless the contrary is proved, the administrative, judicial and social services in the requesting State are as adept at protecting children as they are in the requested State’, and Mother did not seek to prove otherwise.

Stepping back, I remind myself that I must consider the overall risk of harm to the elder children, bearing in mind all the matters I have discussed – all the allegations, and all the protective measures. It is the cumulative effect which matters: In re B (Children) [2022] EWCA Civ 1171, [2023] Fam 77 at [70].

In concrete terms, if Mother accompanies the elder children to Australia – which, in light of the protective measures that are offered, I consider is the more likely outcome – then I am satisfied that she will have the financial wherewithal, the protection of Father’s undertakings mirrored in an Australian court order, and the protection of Australian state bodies, which will together ensure that the elder children are not at grave risk of harm. If, however, the elder children travel without Mother, then I am satisfied that they will be able to live in their family home, with their Father with whom they have always lived, and again will not be at grave risk of harm.

Accordingly, I consider that the Article 13(b) exception is not made out.

Lois is, and always has been, habitually resident in the UK. While she has, or is entitled to, both British and Australian nationality, she was born in England, she has never left England, and she has never been to Australia.

I was troubled as to whether the High Court’s inherent jurisdiction could ever extend to an order that a child who is habitually resident in the UK be summarily ‘returned’ to some other country, so that the courts of that other country could make a full welfare assessment concerning where she should live, and with whom. However, I am satisfied that the jurisdiction does exist in light of Re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre Intervening)[2013] UKSC 75, [2014] AC 1017.

In Re L, the child the subject of proceedings, K, was born in Texas in 2006. K was a US citizen, and lived with his parents in the United States until 2008, when he moved with his mother to the UK. In 2010, mother was ordered by the court in Texas to return to the United States to complete the divorce proceedings. There was a contested hearing in Texas in March 2010, after which the court granted the father exclusive rights to determine K’s primary residence. However, the mother brought an application before the US District Court seeking a return order, contending that since K had been habitually resident in the UK by March 2010, the father had wrongfully retained K in Texas, even pursuant to the Texas court’s order. The US District Court granted that application, and mother and child returned to the UK.

Two years later, in July 2012, the US Court of Appeals upheld an appeal against the US District Court’s decision, and the US Court then ordered K to be returned to the United States. In the High Court, the father sought a return order under the Hague Convention, alternatively under the inherent jurisdiction. The Supreme Court decided that no order could be made under the Hague Convention. However, the Supreme Court went on to hold that the High Court could exercise its inherent jurisdiction to order K’s return for the purpose of enabling the Texas court to consider any application which K’s mother might make or the modification of its previous order.

Baroness Hale held:

The Supreme Court went on to consider that it was in K’s best interests to return to Texas so that the dispute between his parents could be determined there. Re L is therefore a case where the Supreme Court ordered that a child, who was habitually resident in the UK, be ‘returned’ to another country, so that the courts of that country could make a full welfare assessment concerning where he should live, and with whom.

The question then arises as to when the High Court should exercise such jurisdiction. In this regard, Re L was something of a special case. As Moylan LJ described in Re S (A Child) (Hague Convention 1980: Return to Third State) [2019] EWCA Civ 352, [2019] 2 FLR 194 at [58], while holding that what had been ordered in the case before him was in effect a relocation order:

The present case is, as I have indicated, very far from Re L. There are, and have been, no Australian proceedings on foot in respect of Lois. While Lois is entitled to Australian nationality, she does not presently have an Australian passport. Lois has never lived in Australia. No welfare proceedings concerning Lois have ever taken place in Australia.

In light of Re L at [32], however, I consider that the test to be applied is simply to ask what is in the best interests of Lois. Although what is sought is not a summary return order in the usual sense, because Lois has never been to Australia, I am assisted in applying the ‘best interests’ test by the summary by Cobb J in J v J [2021] EWHC 2412 (Fam) of eight linked questions posed in the context of summary return orders by Lord Wilson in Re NY (A Child) [2019] UKSC 49:

On the premise that I am making a return order for the elder three children, as I am, Mr Hames K.C., on behalf of Father, submits that it is in the best interests of Lois to be sent to Australia with her siblings. Lois has never been separated from her siblings. I have up-to-date evidence, in the form of Father’s witness statement of 3 November 2025 in support of the Lois application, and Mother’s responsive witness statement of 13 November 2025, just four days before this hearing began.

Applying the welfare checklist, Mr Hames K.C. submits that I can assume that, if Lois were sent to Australia, her Mother would go too. I can also assume that, if Lois’s wishes and feelings were known, she would wish to have a relationship with her Father, and with her siblings. Her emotional needs would be met by not being separated from either parent or her siblings. Her physical needs will be met, given the protective measures which will be in place, and given the availability, which I can assume, of the range of resources made available by the Australian state. Lois’s circumstances would change, in that she would no longer be spending time with her maternal family, but she would spend time with her paternal family, and avoid the harm of separation from her more immediate family members. Sending Lois to Australia would expose her to the Australian part of her identity, to which she has not yet been exposed, and which is an important part of her background. There is no reason to doubt Mother’s capability in meeting Lois’s needs in Australia (bearing in mind, again, the protective measures that will be in place), and in any event Father will be there, with his support network, if Mother is not. As for the powers available to the Court, I have the power to send Lois to Australia, and it is in her best interests to keep her sibling group together, and to enable a single court to make a welfare determination for all the children together.

Mr Hames K.C. submits that, although domestic abuse has been alleged by Mother, I need not conduct any inquiry into such allegations. I can take Mother’s case at its highest, much as in the context of the Hague Convention application, and proceed on the basis that the protective measures are sufficient to protect Lois from harm.

Mr Hames K.C. further submits that I have sufficient evidence about the living arrangements for Mother and child if I were to send Lois to Australia: see paragraph 24(2) above.

In response, Ms Kirby K.C. submits, first, that it would be procedurally unfair to make the order sought at this hearing. In particular:

In addition, and linked to her first point, Ms Kirby K.C. submits that the evidence that I would need to make a ‘best interests’ decision is lacking. I have received no report from CAFCASS concerning the proposal to send Lois to Australia. As Ms Kirby K.C. put it, it is difficult to imagine CAFCASS saying that it would be in the best interests of Lois to leave the stable environment in which she is currently living, to go to the precarious position of living in Australia, with a Mother caught up in litigation, lacking a support network, and fearing abuse. Ms Kirby K.C. also makes the point that Mother’s evidence is that it would not be in Lois’s interest to be sent to Australia. Father may think it would be, but Father has only met Lois for about ten minutes in her whole life. Ms Kirby K.C. submits that Father has shown little interest or commitment to Lois since she was born. He did not take up the option of sending her cards or gifts.

In considering what is in Lois’s best interests, I am not making a binary choice. I have options which go beyond sending her to Australia, or dismissing the application. In particular, there is a third way, which is to adjourn the Lois application, and to postpone making a decision until after further evidence has been gathered.

In my judgment, the third way is the right one. I am satisfied that it would not be fair to Mother to decide the Lois application now. I accept the submission that Mother has not had sufficient time to consider what evidence she would wish to call in relation to the application, in particular as regards Lois’s situation in England. I also accept the submission that any decision concerning Lois’s best interests should be informed by a report from CAFCASS. I will hear further submissions from the parties as to the scope of the questions that CAFCASS should be asked to consider.

I recognise that this approach will cause delay, and that delay in resolving disputes such as these is likely, generally, to prejudice the welfare of the child. However, this must be set against the extremely truncated nature of the process so far, in which the Lois application was issued only a fortnight before the present hearing. Moreover, unlike with return orders under the Hague Convention, this is not a case where Lois is suffering harmful effects as a result of her wrongful removal or retention, such that prompt return would remedy what might otherwise be the consequences of that act (compare per Moylan LJ in Re B (A Child) (International Centre for Family Law, Policy and Practice Intervening) [2020] EWCA Civ 1187, [2020] 4 WLR 149 at [63]). I do not regard the additional time that will be required to decide this application following a further process as constituting unnecessary delay; rather, it is necessary to enable the court to assess where Lois’s best interests lie.

I accept that, given the purpose for which Lois would be sent to Australia, namely to enable the Australian court to decide the dispute between her parents as to where she and the elder children should live, it is not necessary for the court to decide the allegations of abuse made by Mother. The court can assume that those allegations are true, and then consider the protective measures in place. But for the purpose of the Lois application, the question of harm to Lois from the proposed change of circumstances is more nuanced than it is under the Hague Convention. The question is not the essentially binary question whether the court is satisfied that Lois will be at grave risk of harm or not. Rather what is required is to gauge the extent of harm that Lois may suffer from being sent to Australia, which can then be weighed in the overall balance of where her best interests lie.

For these reasons, I shall:

I shall hear Counsel further on the directions necessary to implement my decision.

In the course of argument concerning the form of order to be made to implement my decision, Father sought an order for interim contact pending the elder children’s return to Australia. Ms Kirby K.C objected that the court lacked jurisdiction to make such an order, on the grounds that the application under the Hague Convention had now been determined, noting that section 5 of the Child Abduction and Custody Act 1985 (the ‘1985 Act’) provides (with emphasis added):

Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.

Ms Kirby K.C. also submitted that the interim contact sought in this case did not fall within the scope of Article 11 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children concluded on 19^th October 1996 at The Hague (the ‘1996 Hague Convention’). Article 11 provides:

In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection.

I gave a brief judgment concluding that I did have jurisdiction to make an order for interim contact, and made such an order. I informed the parties I would record my reasons more fully in writing. These are those reasons.

Mr Hames K.C. submitted that the court did have jurisdiction, applying a broad and purposive interpretation of section 5 of the 1985 Act. He drew to my attention Re A (Abduction: Interim Directions: Accommodation by Local Authority) [2010] EWCA Civ 586, [2011] 1 FLR 1. That was a case in which the Court of Appeal had to consider whether the provision by local authorities of accommodation fell within the scope of section 5. Thorpe LJ held at [38]:

Mr Hames K.C. relied in particular on the observation at [38(iv)] in Thorpe LJ’s judgment that ‘The language of s 5 and the construction of that language needs to be extensive in order to achieve the objectives of the Hague Convention and to safeguard the welfare of children whose vulnerability is generally magnified by the effects of abduction’.

A similarly purposive and extensive reading of section 5 can be found in the judgment of Wilson J in Re N (Child Abduction: Jurisdiction) [1995] Fam 96. There, the applicant mother sought an order authorising the Tipstaff to collect the child from his father’s care, if, as was anticipated, father and child arrived at Heathrow Airport. The issue was whether the court had interim powers under section 5 before the child in question arrived in the jurisdiction. Having heard Counsel for the mother, without notice to the father, Wilson J held:

There is no doubt that, had the boy arrived within the last hour at Heathrow Airport, I would have had the power to make the appropriate interim directions under section 5 of the Act of 1985 to hold him in this country, in the most advantageous circumstances from his point of view that may be devised, pending an inter partes inquiry as to whether he should be returned to California. Looking at the matter on the basis of common sense, it would seem to be extraordinary if that power were to exist in respect of a child who has just landed upon these shores but were not to exist in respect of a child who there was good reason to believe was likely to land upon these shores. and if, in truth, there is no jurisdiction to make orders in the latter case, there would seem to be a likely frustration in a number of such cases of the common intention of the states which signed the Convention on the Civil Aspects of International Child Abduction and imported it into their own laws. So I look to see whether I am driven by the terminology of the Act to conclude that the interim powers given to me under section 5 cannot be exercised other than in respect of a child already here.

There is certainly nothing in section 5 itself which suggests that limitation. Nor is there any other section in Part I or Part III of the Act itself – Part II being irrelevant – which so provides; and it would have been easy for Parliament to have so provided if it had wished to do so.

I look then to the terms of the Convention itself, which are set out in Schedule 1 to the Act of 1985. I note that under article 7 central authorities are bidden to:

"co-operate with each other and promote co-operation amongst the competent authorities in their respective states to secure the prompt return of children and to achieve the other objects of this Convention."

I appreciate that that article 7 is addressed to administrative authorities. Nevertheless its terms are such that, in application to this case, it amounts to a mandate to the administrative authorities of California and of England to co-operate to secure the prompt return of this boy. The obligation under article 7 is not, expressly or by implication, limited to the central authorities of the jurisdiction from which the child has been removed and of the jurisdiction where the child then is.

I note article 8 namely that anybody

"claiming that a child has been removed . . . in breach of custody rights may apply either to the central authority of the child's habitual residence or to the central authority of any other contracting state for assistance in securing the return of the child."

The words "any other" are, in my view, of significance and clearly cover this jurisdiction, notwithstanding that the boy is not now here.

Article 11 provides: "The judicial or administrative authorities of contracting states shall act expeditiously in proceedings for the return of children." The terminology is noticeably wide. I consider myself to be under a duty, as the judicial authority of a contracting state, to act expeditiously, as Mr. Setright bids me do this afternoon, in proceedings for the return of this child.

I interpret the language both of the articles of the Convention and of the text of the Act as being deliberately wide in its instruction to this court to co-operate with all other contracting states in making orders which will secure the return of wrongfully taken children; and in this case its duty can be discharged only by making the orders for the boy's initial restoration into his mother's care in England if, as there are substantial grounds for expecting, he does land here with his father during the next few days.

Mr Hames K.C. submitted that, interpreting section 5 widely and purposively, an ‘application is determined’ in the context of an application for a return order under the (1980) Hague Convention only when such application is dismissed, or the children are returned. He submitted that, since I have decided that the children should be returned but that return has not yet taken place, the application has not been ‘determined’.

I see some merit in Mr Hames K.C.’s submission:

Without deciding whether Mr Hames K.C.’s wider submission is correct or not, I prefer to base my decision on a somewhat narrower point. The application for interim contact was made, informally, in the course of submissions as to the form of order necessary to implement my decision to direct the return of the elder children to Australia. The application was made after I handed down my judgment, but before I made any order implementing my decision. I am satisfied that, at that time, since no order had been made, the application had not been determined within the meaning of section 5 of the 1985 Act. I am, accordingly, satisfied that in making directions for interim contact in the course of the hearing, and recording those directions alongside the return order as part of my formal order, I was acting within my jurisdiction by giving directions ‘before the application is determined’.

For these reasons, I concluded that I did have jurisdiction to make an order for interim contact, pending the return of the elder children, and, as I have indicated, I made such an order.