Z (Abduction: Re-hearing After Set Aside), Re

This is the Court’s third judgment on the father’s application under the 1980 Hague Convention for the summary return of the child Zoe (not her real name) to Turkey. This judgment needs to be read alongside the Court’s previous two judgments dated 23^rd July 2025 and 11^th September 2025. This judgment follows the re-hearing of the father’s application, the Court having set aside the previous return order made in July.

Zoe is now 10 years old. Sadly, there has been considerable delay in determining this application, proceedings having been issued on 2^nd April of this year. Zoe requires resolution of these Hague proceedings so that the process for substantive welfare decision-making can commence, particularly given that significant safeguarding issues are raised by both parents.

The applicant is Zoe’s father. He has been represented at this re-hearing of his application by Ms Kirby KC and Ms Amonoo-Acquah. The respondent is Zoe’s mother. She has been represented at this hearing by Professor George KC and Mr Bennett.

The background to this application is set out within the Court’s first judgment and won’t be repeated here. At the hearing in July, the Court was satisfied that there was evidence of sufficient detail and substance of domestic abuse in the parents’ relationship to give rise to a grave risk of harm to Zoe under Article 13(b), such that the Court could not confidently discount it. There is nothing within the evidence which has been filed since July which causes the Court to reconsider its decision on the issue of domestic abuse as alleged by the respondent mother. On the evidence then before it in July, the Court did however go on to find that the undertakings offered by the father were sufficient to meet the risk of harm from domestic abuse identified under Article 13(b), and so the defence was not made out. Permission had been given to mother prior to that hearing in July 2025 to obtain expert evidence on the issue of protective measures, but she had not done so. There was no application to adjourn to obtain such evidence. The Court therefore proceeded on the evidence before it and accordingly made a return order. For completeness, it is recorded that at the first hearing, the Court rejected mother’s pleaded defence that Zoe objected to a return to Turkey. There is no challenge to that position.

Following the making of the return order, mother changed solicitors and, shortly before the court ordered return date, made clear for the first time to the Court that she would not return to Turkey. Given mother’s position, the implementation of the return order now risked separating Zoe from her primary carer, a matter that had not been considered by the Court at the first hearing and was itself capable of satisfying the Article 13(b) defence. An application to set aside the return order was made on that basis. Keehan J, when giving directions on the application to set-aside, again granted permission for expert evidence to be obtained on the effectiveness of the protective measures offered by father in Turkey. That expert evidence has now been obtained and also provides further detail regarding the possibility that mother will face arrest and criminal prosecution for child abduction if she returns to Turkey, and on mother’s immigration status.

The application for the return order to be set aside came before this Court on 11^th September 2025. The Court was satisfied on the basis of mother’s refusal to return to Turkey and the expert evidence now obtained on protective measures that the return order should be set aside and considered de novo.

The issues which are therefore now before the Court are:

It was agreed between the parties that the application would be re-determined on the basis of submissions alone. In addition to previous statements filed, the Court has received further witness statements from each of the parents, with a number of exhibits. The Court has also considered again the report from Cafcass officer Ms Gwynne dated 20^th June 2025 and an addendum letter dated 23^rd June 2025. The Court has also been greatly assisted by the lengthy report of the appointed experts on Turkish law dated 4^th September 2025 and their two addendums dated 9^th October 2025 and 1^st December 2025.

The legal framework is clear and agreed but I repeat it for the sake of completeness.

Turkey is a party to the 1980 Hague Convention on child abduction. It is pertinent to remind ourselves of the core principles underpinning Hague Convention applications. The cardinal principle is to secure the prompt return of children wrongfully removed or retained to the country of habitual residence. The Convention recognises prima facie that the courts of habitual residence are best placed to make substantive decisions regarding the child’s welfare.

The Court should also not forget what was said by Mostyn J in B v B [2014] EWHC 1804. An application under the Hague Convention is about where the substantive welfare arguments should be heard; not to make those decisions.

It is accepted by the respondent mother that Zoe was habitually resident in Turkey. She has lived there all her life. It is further accepted by the respondent mother that in accordance with Article 3, mother’s removal of Zoe from the jurisdiction was wrongful in that it was in breach of father’s rights of custody. There being agreement that Zoe was wrongfully removed from Turkey, her state of habitual residence, and that a period of less than one year has passed since the date of wrongful removal, in accordance with Article 12 of the Convention, the court must order return forthwith, unless one of the defences/exceptions applies.

The Court again therefore starts from the position that Zoe must be returned to Turkey. The burden rests with the mother to establish on the evidence to the civil standard of proof that one of the exceptions applies. The only defence that remains in issue is the harm/intolerability exception under Article 13(b).

In accordance with Article 13(b), the Court is not bound to return the child to the state of habitual residence if the respondent mother establishes that there is a grave riskthat her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The guiding principles are set out by the Supreme Court in Re E [2012] 1 AC 144. The Court’s focus must be on the child, and the risk to the child if returned. The risk to the child must be grave, indicating an enhanced level of seriousness. It is the risk which must be grave, and not the nature of the harm, but the gravity of the risk is inevitably inextricably linked with the harm. To expose the child to an intolerable situation, is to place the child in a situation which this child in these particular circumstances should not be expected to tolerate.

Where allegations are disputed, the Court should first establish whether, if they are 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. That is often expressed in terms that the allegations should be taken at their highest. If the grave risk is established, the Court must then consider how the child can be protected from the risk.

The court is not expected to embark on a fact-finding exercise into the veracity of matters alleged to ground the defence under Article 13(b). The Court’s task is to evaluate the evidence in the context of the summary nature of the proceedings. That does not mean that there should be no evaluative assessment of the allegations by the court. The Court should analyse whether the allegations are of sufficient detail and substance to give rise to the grave risk or whether the evidence enables the Court to confidently discount the possibility that they do.

Importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she returns to the state of habitual residence.

In considering protective measures, the Court must examine in concrete terms the situation that would face a child on a return being ordered. The court must carefully consider whether and how the risk can be addressed or sufficiently ameliorated so that the child will not be exposed to harm. In many cases, sufficient protection will be afforded by undertakings or by relying on the courts of habitual residence. However, as is made clear in Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415, if undertakings are offered as a protective measure, the court has to take into account the extent to which they are effective in ensuring protection, compliance and enforceability, the burden to demonstrate effectiveness being on the left behind parent. There is a need for caution.

In undertaking the analysis of protective measures, the principle of comity between parties to the Hague Convention remains important. As noted by MacDonald J in G v D (Art 13(b): Absence of Protective Measures) [2021] 1 FLR 36, [39]

“Finally, it is well established that courts should accept that, unless the contrary is proved, the administrative, judicial and social service authorities of the requesting State are equally as adept in protecting children as they are in the requested State.”

If a defence or exception is established by the respondent mother, the court retains a discretion whether to order the return of the child. In exercising that discretion, the relevant considerations include: policy objectives underpinning the Hague Convention; wider considerations of children’s rights and welfare; and the extent to which the case has moved away from the Convention objective of achieving prompt return.

If a respondent has established that the harm exception is made out, it would ordinarily not be appropriate to exercise the Court’s discretion in favour of return.

The alleged grave risk of harm to Zoe must be looked at cumulatively (Re B (Abduction: Consent: Oral Evidence) [2022] EWCA Civ 1171). As noted above, there is nothing in the updating evidence that causes the Court to reconsider its decision regarding the domestic abuse to which it is alleged mother and Zoe have been exposed and the grave risk of harm to which that abuse gives rise. Again, for completeness, I repeat the relevant sections of the ex tempore judgment handed down on 23^rd July 2025:

“47.

In terms of the allegations of domestic abuse, again, I note that these are summary proceedings in which oral evidence has not been heard, and the court is not invited to make findings having heard oral evidence. In accordance with the Supreme Court guidance, the court must take the allegations at their highest, albeit being satisfied that there is, nevertheless, credible or cogent evidence of the alleged abuse.

48.

In terms of the allegations and the evidence Mother has filed in support, I first of all note that a number of the allegations made by Mother date back a number of years, indeed to before Zoe was born. In so far as those allegations relate to disputes and arguments around the wedding and aggressive behaviours at the time of her birth, they are of doubtful relevance in terms of the forward-looking analysis this court must undertake regarding the circumstances of her return to Turkey. I also note a very serious allegation of rape when Mother was heavily pregnant. That was an allegation from some ten years ago. That does not, of course, in any way undermine or minimise the seriousness of an allegation of rape, but what this court must be mindful of is that the mother’s statement does not suggest there has been any repeated sexual abuse or allegations of rape thereafter, and, given the passage of time and a further ten years of marriage, the court again, without questioning the seriousness of the allegation, must question its ongoing relevance to the safety and welfare of Zoe upon a return to Turkey.

49.

Turning to the allegations of physical abuse, Mother alleges that there has been physical abuse throughout the relationship, resulting in injuries and bruising, and she has exhibited photographs of injuries which she says were caused approximately four years ago. In her statement, she identifies some specific incidents of physical harm and is able to give approximate dates and timescales. She says that the applicant would frequently hit, kick and punch her, and would target areas where bruising was less visible. She says that she was pushed on numerous occasions, that Father would throw objects across the room, such as plates, cause property damage by smashing items and frequently hitting and kicking doors in rage. She also makes specific allegations that the applicant father tried to strangle her on a couple of occasions.

50.

One such incident, she says, was witnessed by Zoe when she was approximately four years old. This was an occasion in 2019, when the father dragged her out of the bedroom in the middle of the night, accused her of being drunk, was aggressive, put a broken bottle to her neck, threatened to stick it in her throat whilst screaming at her, pinned her against the wall and threatened to beat her up. She says that he has also attempted to push her and that she was forced to run and hide in the bedroom.

51.

She also identifies another incident, she says, in 2022. On this occasion, she says the applicant threatened to beat her up, took Zoe and she had to run to her friend’s house until the father calmed down.

52.

She also gives evidence of a third specific occasion, this being the precipitating incident which led to her leaving the father and the family home and coming to this jurisdiction. She said that in early March 2025 there was a dispute over Father’s dinner not being ready, that he began shouting and physically assaulted her. She says he punched her, was forcing her around the kitchen and cornered her; he caused significant bruising to her arm and, again, Zoe witnessed this incident and was distressed. She says that it was this incident that led her to decide that she could not stay in Turkey with the father and determined that she must leave.

53.

She also gives evidence of controlling behaviour throughout the relationship, with Father dictating what she could wear, what she should look like and who she was able to see and monitoring her social media accounts.

54.

The mother alleges that there were several aggressive incidents which she suggests were underpinned by Father suffering, at times, from depression and having mental health difficulties. As I have noted, she also suggests that the applicant brought a gun and bullets into the family home, claiming it was for protection, but was used against her in terms of an implied threat.

55.

She also gives evidence of emotional manipulation. She says that, throughout the relationship, the applicant would threaten suicide, particularly when she refused to give him money. In support of that, she exhibits photos and messages of implied threats of suicide. She says that these incidents were part of a broader pattern of emotional manipulation which left her in a position of fear and anxiety and bearing an overwhelming sense of responsibility for Father’s mental wellbeing.

56.

Finally, she details within her statement allegations of financial abuse. She alleges that the father rarely contributed to the household income and that the little money which he did have he spent on drugs. She asserts he owed significant amounts to various people which led to his own accounts being frozen. She said any funds that he did have were used to cover debts and therefore he had to use her accounts to receive payments for his business. She says that he could access these accounts and funds were withdrawn in cash or transferred to friends, and she was the one who was left bearing the burden of paying for household expenses, for rent, for groceries and bills.

57.

As I have noted, those allegations, as detailed within the mother’s witness statement, are completely denied by the father. In his response to those allegations, the father notes that there is very little by way of any corroborating evidence for the allegations that Mother makes.

58.

In terms of any corroborating evidence, Mother says within her statement that she has been unable to provide evidence gathered over the years in terms of photographs and so forth because they were stored on a mobile phone and Zoe’s tablet, which Father has managed to reset on a factory reset online program and, as a result of that, that evidence has been lost. Regardless of the truth of that explanation, the position of this court is one in which there has been little filed in terms of corroborating evidence. Some photographs of bruising have been exhibited to Mother’s statement, but the court notes that those photographs are unidentified in terms of date, time and any identifying features of the individual, the location of the bruising or body part affected. Therefore, in terms of corroborating evidence, the photographs are of no assistance in terms of assisting in the veracity of the mother’s allegation.

59.

In terms of the allegation of financial abuse, again, I note that Mother has provided no financial documentation to support her allegations of financial abuse, documents in terms of bank statements which would evidence the flow of money in and out of the family’s accounts.

60.

I note there is some limited support for some of her allegations in exhibited text messages, in particular regarding the threat of suicide, but otherwise there is nothing from exhibited text messages to support allegations of physical or financial abuse; nor have social media or text messages been exhibited which evidence concern regarding the dynamics of the parents’ relationship or which may exhibit evidence of coercive and controlling behaviours by Father.

61.

I also note that there have been no contemporaneous reports to police or health authorities in Turkey that Mother has evidenced which would support contemporaneous reporting of the abuse she says she experienced. Nor has Mother provided corroborating evidence that she sought support from domestic abuse support services in Turkey. I do, however, of course, remind myself that the absence of contemporaneous reports to police and other authorities is not unusual for victims of domestic abuse.

62.

In terms of evaluating the evidence, I also have to weigh and balance that there is some evidence that positively undermines the mother’s allegations. Father, to his witness account, has exhibited a signed declaration in Turkey that, despite his entitlement to possess a firearm, he does not intend to do so. He has also produced evidence of his financial position, including his business registration, which remains ongoing, income from his business and also the family’s olive farm, and text messages which evidence him confirming making various payments in financial support of the family. Those pieces of evidence positively undermine Mother’s account of financial abuse, of Father having made no financial contribution to the family or having squandered his money on a drug addiction.

63.

The court also notes that, in terms of the mother’s allegations of coercive and controlling behaviours, Mother evidently has been able to travel freely and independently from Father, including spending holiday time in the United Kingdom, and was able to do so with his evident agreement and support.

64.

However, in weighing and considering the evidence before the court on the allegations of domestic abuse, this court does note that Zoe, in her first meeting with Ms Gwynne, described abusive behaviours by Father which she, herself, had experienced in the family home. Zoe says to Ms Gwynne that she did not like the way that her father acted around her mother. Zoe describes that he would hit her and describes an incident in the home when Father was angry that his dinner had not been made and she described Father kneeing Mother’s shoulder, causing a big bruise, and describes that she, herself, was scared.

65.

She also describes, in terms of her experiences, that when Mother tried to stand up for herself, Father got angrier and would shout a lot, and she, when asked what the worst thing that had happened in her childhood was, describes how, when she was six or seven, Mum and Dad were arguing and she saw her dad grab a small knife and hit her mother with the side of the knife. She also describes one occasion when she says she was accidentally hit by a door.

66.

The court, therefore, has to weigh, in terms of Mother’s accounts of domestic abuse, that Zoe also describes in her work with the Cafcass officer childhood experiences which are of abusive conduct within the family home, to which she has directly been exposed.

67.

In terms of what the extent of those experiences and issues may have been, I also note again, however, the evidence from the school in Turkey that they have had no concerns about Zoe’s presentation at school giving any indication to them of any significant problems at home impacting upon her happiness and welfare. I also note, in terms of the wishes and feelings work, and also from the supervised contact sessions, that Zoe does not exhibit any fear or anxiety around her father, that she describes and exhibits having a strong relationship with her dad and that she misses him.

68.

I also, in weighing the evidence and evaluating it, note that Father, whilst denying the abuse, does accept in his witness statement recalling an incident occurring in early March of 2025 concerning dinner arrangements, albeit his account was that that was to do with ensuring regular mealtimes for Zoe. He does accept that, during that incident, there was screaming. He says Mother was screaming and shouting – and that she was shouting, “Get off me, get off me”. Father now suggests that this was done to plant in Zoe’s mind that Mother was being harmed or abused in some way and that this may have been a pre-emptive attempt to frame him. This court considers that explanation to be implausible.

69.

Bearing in mind the summary nature of these proceedings and evaluating that evidence, I am therefore satisfied that there is evidence of sufficient detail and substance of abuse in the relationship to give rise to the grave risk, such that I could not confidently discount it. I do remind myself that children exposed to domestic abuse suffer significant harm, that they are, under English domestic law, to be regarded, both directly and indirectly, as victims of that abuse.”

This latter point is particularly significant in considering the potential for Zoe to be exposed to a grave risk of harm as a victim of domestic abuse in circumstances where she may also face separation from her primary carer, a return to Turkey alone and being placed most probably in the sole care of her father.

Mother now asserts in clear terms to the Court that she will not return to Turkey even if that means Zoe returning alone. Her position is that she believes if she returns to Turkey she will be imprisoned or killed, and that as catastrophic as it would be for Zoe to return alone, she would rather remain in this jurisdiction where she will be safe and can continue to fight for Zoe from here.

It is of course in many respects a wholly unattractive argument to put before the Court that regardless of what order the Court might make, the abducting parent will not return with the child. It may well be accurately characterised as a strategic attempt to hold the court to ransom. In C v C (Minor: Abduction: Rights of Custody) [1989] 1 WLR 654, Butler-Sloss LJ observed that refusing to make a return order in such circumstances would “drive a coach and four through the Convention.”

In cases where the left behind parent is fully able to provide safe and appropriate care, the abducting parent’s refusal to return is unlikely to constitute a grave risk of harm to the child and a return order will be made.

It is however clearly established in the case law that an order which will result in the separation of the child from the primary carer canpotentially constitute a grave risk of harm to the child. It was held by Moylan LJ in Re A (Children)(Abduction: Article 13(b)) [2021] EWCA Civ 939, that “the effect of the separation from the taking parent can establish the required grave risk of harm.” The question was recently addressed by Peter Jackson LJ in Re R (Child Abduction: Parent’s Refusal to Accompany) [2024] EWCA Civ 1296, in which he held:

“Article 13(b) requires the parent opposing a child’s return to establish that there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Where that parent asserts that they will not accompany the child to return, the court will scrutinise the assertion closely because it is an unusual one for a main carer of a young child to make. The Court will therefore make a reasoned assessment of the degree of likelihood of the parent not returning. Relevant considerations will no doubt include the overall circumstances, the family history, any professional advice about the parent’s health, the reasons given for not returning, the possibility that the refusal is tactical, and the chance of the position changing after an order is made. The court will then factor its conclusion on this issue into its overall assessment of the refusing parent’s claim to have satisfied Article 13(b). By this means, it will seek to ensure that the operation of the Convention is neither neutralised by tactical manoeuvring nor insufficiently responsive to genuine vulnerability…. The court is assessing likelihood on a summary basis, not finding facts.”

The Court is satisfied on the evidence before it that mother’s refusal to return to Turkey is genuine and not a tactical response to the return order made in July. Mother’s position must be evaluated within the context of the domestic abuse which she asserts. Taken at its highest, mother makes allegations of the most serious nature. From the outset of these proceedings, she has alleged that father has made threats to her life and is a dangerous individual. Since arriving in this jurisdiction, there has been some consistency in the allegations she has made. She reported domestic abuse to the police immediately upon arrival in England and was assisted with support through a refuge. She sought assistance from three domestic abuse support charities. A referral was made to MARAC by her local police force. She told her domestic abuse support worker for the purposes of presenting to MARAC in June 2025 that she was “extremely scared for her life” and that she would not return to Turkey even if Zoe was ordered to return, saying “if it means Zoe goes back alone then, it truly is terrible, however, not as terrible as me being dead.”

Communication between mother and her former solicitors reinforces mother’s clear assertion that she cannot return and that this has been her position since the outset of these proceedings premised on a genuine fear for her life. On 24^th April 2025 in a WhatsApp exchange with her solicitor regarding preparation of her statement, he requests she make clear why she says she cannot return. On 30^th April, mother tells her solicitor that father would have her killed and that he has a gun which she is convinced he would use. On 18^th June 2025 she tells her solicitor that if she is forced to go back with Zoe she will probably end up in jail or dead.

Mother’s refusal to return to Turkey was thus something clearly in contemplation prior to the Court’s decision in July 2025. It is not a mere tactical device that has developed in response to the return order. Her position and rationale for not returning to Turkey, even if Zoe has to travel back alone, has some logic and force in light of the serious allegations of domestic abuse she makes and her apparently genuine belief the father will have her imprisoned or killed as soon as she returns. The genuine nature of her distress is supported by the GP report she has provided which details the mother’s levels of severe anxiety and symptoms of PTSD, for which the Court notes the GP has prescribed medication. Concerns regarding mother’s mental health may be largely based on her own self-reporting, but the GP is clearly sufficiently satisfied as to the genuine nature of her mental health issues to be prescribing medication.

Whilst mother’s reports to the authorities in this jurisdiction are of course self-reporting, they do evidence the consistency of mother’s position since she has been within a clear place of safety. The Court is thus satisfied that the mother will not return to Turkey even if the Court makes a return order with respect to Zoe.

A further issue which threatens separating Zoe from her mother should the court order her return, is the potential for mother to face arrest and criminal prosecution for child abduction on return to Turkey. The expert opinion raises significant concern that criminal proceedings against mother are an unresolved risk. The punishment if convicted is likely imprisonment.

There is some clear evidence suggesting criminal proceedings have been initiated against mother. Father told a family friend in the immediate wake of mother removing Zoe from Turkey that he had sole custody of Zoe and that he had made a criminal complaint to the police regarding her abduction. Father’s access to relevant CCTV footage, supports there having been some involvement of the police. Father now denies making a criminal complaint, saying he was just trying to warn the friend to prevent her getting into trouble or trying to emphasise the gravity of the situation. The texts are however in clear and unambiguous terms and on their face display a level of knowledge regarding child abduction in Turkey which give the messages the ring of truth. Father appears to understand, for example, that to constitute the offence of child abduction in Turkey he must have sole custody; a point he makes clear in the messages. To be balanced against this, the Court notes there is no evidence from mother’s online government account that a child custody case has been launched by father against her, or that he has been granted an interim order. The link he draws between sole custody and the basis for making a criminal complaint of child abduction is however notable.

In response to the concern raised by the experts that there may be an ongoing criminal investigation, father has produced a document purportedly from the local police confirming there are no pending criminal or civil proceedings against mother. However, that document only goes to heighten concerns regarding father’s honesty given the expert advice that it has a number of unusual features suggestive of it not being genuine, including: that it does not have a standard reference number; the police officer’s name rather than his badge number appears on the letter; and the police going beyond their remit by appearing to attest to the absence of any civil proceedings. It is also clear from the expert evidence that the document could only speak to a complaint made at that particular police station, and that obtaining reliable confirmation there are no extant criminal proceedings throughout Turkey would be a complicated and lengthy process. The experts explain that any criminal investigation is confidential and will not be disclosed by the online system until the prosecutor has proceeded to press charges and it moves to the court arena. It is therefore very difficult to know the actual position with respect to any criminal complaint.

The Court notes the evidence is somewhat uncertain, but on balance is satisfied there is a realistic possibility mother will be arrested and face criminal changes for child abduction if she returns to Turkey. This in turn poses a grave risk of harm to Zoe by reason of her forced separation from her primary carer.

Finally, the Court notes that uncertainty regarding mother’s immigration status provides a further limb to the grave risk of harm to Zoe arising from being separated from her mother. It was held in Re B (A Child)(Abduction: Article 13(b)) that the abducting parent must have sufficient stability in their immigration status to be able to return and remain in the state of habitual residence, at least pending conclusion of any domestic proceedings to resolve the child’s care arrangements. In this regard it is notable that the experts advise child custody proceedings could be extremely protracted in Turkey, running into years.

Mother will be able to enter Turkey on a visitor visa for a period of 90 days in any 180-day period. However, in order to have some security over her immigration position, sufficient to remain in the jurisdiction during potentially very lengthy child custody and divorce proceedings, a resident’s permit will be required. An application for a resident’s permit should preferably be made from outside the jurisdiction, although exceptionally an ‘in-country’ application will be accepted. Once an application has been processed, mother can remain in Turkey until a decision has been made. Whilst mother can rely on a number of factors which would appear to make a successful application realistic (her strong familial links to Turkey and length of previous residence), there are clear unknowns given her lack of income and the threat of criminal proceedings pending against her. The grant of a resident’s permit allowing mother to remain in Turkey beyond the 90 days permitted for all British nationals cannot therefore be assumed. It will be a matter for the discretion of the Turkish authorities. In such circumstances the Court accepts it cannot be confident mother’s immigration status will be sufficiently stable on a return to Turkey.

The impact on Zoe of returning to Turkey without her primary carer, or her mother being prevented from being with her in Turkey, will be significant. It was evident from her discussions with Ms Gwynne, the Cafcass officer, that the thought of returning to Turkey without her mother caused Zoe considerable anxiety. Mother is Zoe’s primary carer with whom she has always lived. To be separated from her primary carer would constitute a very significant change in her daily care arrangements and risk placing her in an intolerable situation.

Moreover, if Zoe returns to Turkey without the respondent mother, the only realistic option is that she will be placed in the care of her father. It is important to note that mother has not suggested father would hurt Zoe. It is also clear from Zoe’s discussions with Ms Gwynne and the supervised contact sessions that took place in the summer, that Zoe has a good loving relationship with her father, that she has a secure attachment to him and is comfortable in his care. On that basis it can be argued that returning Zoe without her mother will not expose her to a grave risk of harm or place her in an intolerable position.

However, in addition to the emotional harm caused by separation from her primary carer, the Court reminds itself that Zoe, on her own account of her lived experiences in Turkey, is properly considered a victim of domestic abuse. The Court has to consider the longer term impact on a child, psychological and emotional, of being placed within the care of an abusive parent. The expert evidence filed within these proceedings makes clear that the child protection authorities in Turkey will not be able to provide any form of risk assessment before Zoe is placed in her father’s care. Without the issues of domestic abuse being addressed, Zoe would be at grave risk of harm.

In conclusion, the Court is thus satisfied mother prima facie establishes that Zoe will be exposed to a grave risk of harm and/or an intolerable situation if made subject to a return order.

The Court must therefore turn to look again at the protective measures available to meet the identified grave risk of harm, this time with the clear benefit of detailed expert evidence.

Father continues to offer a number of undertakings that he argues will meet the risk of harm identified:

Whilst some of those undertakings may more properly be described as ‘soft landing’ provisions, a number are clearly intended to provide protection for Zoe against exposure to abusive behaviours, protect against separation from her primary carer and to ensure that mother will have the means to meet Zoe’s basic care needs.

Father says he can be trusted to comply with the undertakings and points to steps he has already taken to ensure mother can safely return, including vacating the family home and taking an additional tenancy in August in preparation for their return.

The Court reminds itself again that in accordance with Re T (Abduction: Protective Measures: Agreement to Return), undertakings which are intended as protective measures must be effective to meet the identified risk of harm. In circumstances where father’s credibility is questioned on matters such as the existence of an ongoing criminal complaint and the authenticity of documents he has produced, relying on his word alone will not suffice. The undertakings must be capable of effective recognition and enforcement in Turkey. It is however clear from the expert evidence that ensuring the undertakings can take effect in Turkey is a protracted, onerous and uncertain process.

Indeed, the expert evidence is clear that it is highly unlikely the undertakings will be effective and enforceable in Turkey. Firstly, undertakings cannot be recognised through free-standing proceedings commenced for that purpose. The only way to secure their effectiveness would be to incorporate the undertakings into a final custody order which would be predicated on a final divorce order. The approval of the Turkish courts would be required, involving consideration of whether the undertakings are consistent with Turkish public policy. The view of the experts is that some of the undertakings will not be accepted, most notably that father will not make, pursue or support any criminal complaint against mother, that being an innate right that father cannot promise away, and moreover once the police are seized of a complaint it is a matter entirely for them. Furthermore, given there is no agreement between the parents as to the terms of any divorce or custody arrangement, such a process is likely to be lengthy and fraught with difficulty. In any event, given the matter concerns a child’s welfare the Turkish Court would be required to undertake a full investigation into whether the undertakings were and continue to be in the child’s best interests. The experts’ view is that making a return order conditional upon certain undertakings may be considered incompatible with Turkish public policy.

The complex and lengthy process required to ensure recognition of the protective measures in Turkey – even if realistic – would therefore be outside the timescales of a summary return process.

An alternative approach would be for this court to make a range of protective orders to meet the risk of harm and for the parties to seek recognition of those orders in Turkey. Again, however, and despite being parties to the 1996 Hague Convention and the provisions of Article 24, any orders made by this Court would fall to be considered by the Turkish courts as to their consistency with Zoe’s welfare, for which a full best interests analysis would be required. That process would again not be straightforward and would inevitably cause considerable uncertainty and delay.

In light of the expert evidence, it would appear that the most effective route to secure the necessary protective measures may be for mother to make an application direct to the local Turkish court for protective orders in advance of returning. A conditional return order could be made on that basis. The expert evidence suggests that such orders are quickly and fairly easily obtained, with a low evidential threshold, can be made for an initial but extendable period of 6 months and can be applied for even if mother is not within the jurisdiction by granting a power of attorney to her lawyer. Again, however, such a route is highly uncertain, with no guarantee that orders will be made, in what terms, and their protective scope. Such orders will also be subject to full challenge by the father if he opposes them once mother and Zoe are in Turkey. Notably, there is no equivalent to the common approach adopted in this jurisdiction of the respondent being able to agree the protective orders can remain in place on a no admissions basis. Allowing the orders to remain in place may therefore be highly prejudicial to father.

In accordance with the expert advice, there is thus no clear and reliable route to ensuring the effectiveness and enforceability of the protective measures. If the protective measures cannot be effective the grave risk of harm arising from the domestic abuse remains

Furthermore, there are a number of limbs constituting the grave risk of harm that are simply not amenable to any protective measures. If mother refuses to return to Turkey because she believes that regardless of what protective measures are in place her life will be at risk, no undertakings or orders will be able to address that. Similarly, there are no steps anyone can take by way of undertakings or orders to prevent Zoe being separated from her mother due to a pending criminal prosecution against her. As noted above, father cannot promise away his innate right to make a criminal complaint regarding Zoe’s abduction, and it is a matter for the Turkish authorities whether any such complaint is pursued. Similarly, this court cannot interfere with any decisions of the Turkish immigration authorities. These are clearly risks to Zoe arising from a return order that sit outside anything the applicant father is now able to control. Consequently, even if there were a clear route to obtaining protective orders in Turkey with respect to the grave risk of harm from domestic abuse, these other matters would remain unmitigated.

The Court is thus satisfied looking holistically at the factors giving rise to grave risk of harm and the availability and effectiveness of protective measures, that the respondent mother has successfully established a defence under Article 13(b).

The final question of whether Zoe should be ordered to return to Turkey thus falls to the exercise of the Court’s discretion. In exercising that discretion, the Court weighs within the balance the principle of comity and the policy objectives underpinning the Convention: that children should be quickly returned and substantive welfare decisions made by the courts of habitual residence who are best placed to make those decisions. However, given the delay in this case, we are far from it being a matter of ‘hot pursuit’ in which a quick and effective return to the state of habitual residence can be achieved.

The Court is mindful that the evidence before the Court is that Zoe was thriving in Turkey, had a large supportive network of family and friends, enjoyed a close and positive relationship with her father and that he makes significant safeguarding allegations against mother, supported by the contemporaneous text messages, of alcohol abuse.

However, ultimately, and despite these positives, to order return would expose Zoe to a grave risk of harm from domestic abuse and potential separation from her primary carer. The Court is satisfied that would be contrary to her fundamental rights and welfare interests, and, as argued on behalf of mother, sanction use of the Convention as an instrument of harm to children (Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51).

In exercising its discretion I am satisfied the Court cannot order a return of Zoe to Turkey in circumstances where she would be exposed to a grave risk of harm. The application for a return order under the Hague Convention is thus refused.