M v A

Factual and Procedural Background

An application dated 26 September 2024 was brought under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Applicant ("the Father") seeks the summary return to Poland of two children, aged 9 and 5 years and 6 months respectively, who were wrongfully retained in England by the Respondent ("the Mother"). The children were habitually resident in Poland prior to their arrival in England for a one-month holiday on 19 July 2024. The Father holds custody rights under Polish law.

The Mother denies the application relying on defences under Articles 13(b) and 13 of the 1980 Hague Convention. The court received agreed bundles and skeleton arguments from both parties. The hearing was conducted in person with the Respondent screened. Evidence was heard from a Cafcass officer reporting on the elder child's views and from a psychologist instructed as a single joint expert. Both parties made oral submissions.

The factual background includes allegations by the Mother of domestic abuse by the Father during their relationship in Poland, including coercive, controlling, emotional, financial, verbal, and occasional physical abuse, some witnessed by the children. The Father denies these allegations. The Mother has sought psychological and social services support in Poland and the UK. The parties travelled to England for a holiday in July 2024, after which the Mother decided not to return to Poland with the children due to fear of the Father's behaviour.

The court received reports from Cafcass regarding the elder child's wishes and feelings, noting communication difficulties due to aphasia, and a clinical psychologist's report diagnosing the Mother with severe depression and anxiety, likely to deteriorate if returned to Poland without adequate support and independence from the Father.

Protective measures proposed by the Father include undertakings regarding non-harassment, living arrangements separate from the Father, financial maintenance, social services involvement, and legal proceedings in Poland. The court considered the legal framework under the Hague Convention and relevant case law in assessing the defences raised.

Legal Issues Presented

1. Whether a return order would expose the children to a grave risk of physical or psychological harm or place them in an intolerable situation contrary to Article 13(b) of the 1980 Hague Convention, including consideration of protective measures and discretionary factors.
2. Whether the elder child objects to a return to Poland, whether she has attained the age and maturity to have her views considered, and if so, whether the court should exercise its discretion not to order return under Article 13.

Arguments of the Parties

Father's Arguments

• Neither child objects to a return; if the elder child objects, the court should exercise discretion to order return regardless.
• Any risks from the Mother's allegations and mental health can be mitigated by protective measures offered by the Father and support arranged prior to return.
• The protective measures include non-harassment undertakings, separate living arrangements funded by the Father, maintenance payments, payment for flights and medical treatment, and social services involvement in Poland.
• The Mother has previously worked in Poland and has potential employment opportunities.
• The Mother's mental health issues are less severe than in other cases where return was refused; she is not suicidal and has accessed support previously.
• The elder child's expressed preference against return is not a formal objection but a preference influenced by the Mother's presence.
• If the elder child objects, discretion should favour return due to the children's habitual residence in Poland and the policy objectives of the Hague Convention.

Mother's Arguments

• The domestic abuse allegations and mental health issues are interlinked and should be accepted as true for the purpose of the defence.
• The mental health difficulties are situational and a consequence of the lived experience in Poland.
• The protective measures offered by the Father are inadequate to mitigate the risks; the Mother lacks support and independence in Poland necessary for effective therapy and recovery.
• The financial support offered is insufficient and uncertain.
• The grave risk exception under Article 13(b) is established.
• The elder child objects to return and meets the gateway criteria for her views to be considered.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by accepting the allegations of domestic abuse at their highest given the summary nature of the proceedings and the inability to resolve factual disputes fully. It identified three grave risks under Article 13(b): physical and psychological harm to the elder child from the alleged abuse, harm from witnessing abuse of the Mother, and harm to the younger child from witnessing abuse of the elder sibling.

Regarding the Mother's mental health, the court acknowledged the diagnosis of severe depression and anxiety with likely deterioration upon return to Poland, particularly if the Mother lacked independence and support from the Father. However, the court noted no evidence that the Mother's mental health would impair her ability to care for the children or that she posed a risk to herself.

The court emphasized that the Article 13(b) exception is concerned with the risk to the children, not the adult parent's psychological harm alone. The evidence did not satisfy the threshold that the Mother's mental health alone created a grave risk to the children.

The court then considered the cumulative effect of both strands — the abuse allegations and the Mother's mental health — in light of the Father's proposed protective measures. These measures included securing separate accommodation, no contact with the Father except as agreed, social services involvement in Poland, maintenance payments, and private law proceedings in Poland.

The court found these measures sufficient to ameliorate the grave risks identified, allowing the children to live independently and safely with their Mother and access therapeutic support. The court accepted the presumption that Polish authorities are capable of protecting the children.

On the child's objections defence, the court found the elder child expressed a preference not to return but was unable to conclude definitively that she had attained the maturity to have her views considered independently, noting communication difficulties and potential maternal influence. Even if the gateway was passed, the court would not exercise discretion against return given the policy considerations and protective measures.

Holding and Implications

The court held that the Mother had not discharged the burden of proving a grave risk under Article 13(b) sufficient to refuse return of the children to Poland. It also concluded that the elder child's objections defence was not established at the gateway stage, and even if it were, discretion would favour return.

DISPOSAL: The court ordered the children to be returned to Poland once the Father's proposed protective measures and conditions are implemented.

The decision directly affects the parties by requiring the return of the children to their habitual residence subject to protective conditions. No new legal precedent was established; the ruling applies established principles of the Hague Convention and relevant case law.