FC v MS [2025] EWHC 1030 (Fam) (22 April 2025)

Neutral Citation Number: [2025] EWHC 1030 (Fam) Case No: FD 24 P 00524 IN THE HIGH COURT OF JUSTICE FAMILY DIVISION Royal Courts of Justice Strand, London, WC2A 2LL 22 April 2025 B e f o r e : Mr Justin Warshaw KC sitting as a Deputy High Court Judge ____________________ Between: FC Applicant - and - MS Respondent ____________________ Anna McKenna KC and Andrea Watts (instructed by Shepherd Harris & Co Ltd) for the applicant Mark Jarman KC and Jonathan Evans (instructed by MSB Solicitors) for the respondent Hearing dates: 15 and 16 April ____________________ HTML VERSION OF JUDGMENT APPROVED ____________________ Crown Copyright © This judgment was handed down by circulation to the parties' representatives by e-mail. Mr Justin Warshaw KC: This is an application brought pursuant to the 1980 Hague Convention for the summary return to the Republic of Ireland of DC who is 7 years old. The application has been brought by DC's father, F. He was represented at this hearing by Ms Anna McKenna KC and Ms Andrea Watts. The respondent to the application is DC's mother, M. She was represented by Mr Mark Jarman KC and Mr Jonathan Evans. I am very grateful to all four counsel for their very helpful oral and written submissions. Given the nature of the defences raised by M, I did not hear any oral evidence from the parties but they had submitted written statements. I had three statements from F dated, 23 October 2024, 17 January 2025 and 11 April 2025 and I had two statements from M dated 10 January 2025 and 9 April 2025. These were accompanied by numerous exhibits. I had the benefit of a report from a very experienced CAFCASS officer, Ms Kay Demery, dated 1 April 2025, addressing DC's wishes and feelings. Ms Demery attended court and was cross examined by Mr Jarman and Ms McKenna. In addition, I had a report dated 24 March 2025 from Dr Sumi Ratnam, a forensic psychiatrist, who assessed M's mental health. Dr Ratnam provided additional answers to questions raised by way of clarification. These are dated 14 April 2025. Dr Ratnam gave oral evidence by video link and was cross examined by the leaders. The bundle contained additional material to which I will refer as necessary. There is no dispute in this case that DC was wrongfully removed from Ireland, where he was habitually resident, and brought to England in late June 2024. I remind myself that the objective of the Convention is to facilitate a swift restoration of the status quo so that any dispute about child arrangements can be resolved in the country of habitual residence. It is intended to dissuade a parent from bypassing the proper legal process by acting unilaterally on the international relocation of children. However, the signatories to the Convention recognised that in a small number of cases, there may be good reason why the status quo should not be restored and therefore provided for a number of so-called defences. M does not want DC to return to Ireland and therefore she sought to rely on two of those defences under Article 13 of the Convention, namely, (1) there is a grave risk that RS's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation (Article 13(b)), and (2) DC objects to being returned and has obtained an age and degree of maturity at which it is appropriate to take account of his views, Article 13(2). Mr Jarman and Mr Evans sensibly withdrew M's defence under Article 13(2) in closing submissions. Thus, the only defence I must address is under Article 13(b). The legal principles which underpin that defence are well-established. The seminal case providing guidance on the operation of Article 13(b) is the Supreme Court decision in Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27 . The burden of proof is on the parent relying on the defence. The risk must be grave, that is the risk must have reached such a level of seriousness as to be characterised as such. Grave characterises the risk not the harm, but of course there is an interrelationship such that a low level risk of really serious harm may still be properly characterised as grave whilst the virtual certainty of tolerable harm may still not reach the necessary threshold. There is no gloss or complication to be applied to physical or psychological harm. However, intolerable is a strong adjective that in this context means a situation which this particular child in these particular circumstances should not be expected to tolerate and it includes physical or psychological abuse or neglect and exposure to the harmful effects of witnessing the physical or psychological abuse of a parent. As oral evidence is highly unusual in such cases and fact finding therefore not possible, I am also mandated to take allegations at their highest, although there may be circumstances in which I can take a view about any such allegations. Both parties in this case say that I can proceed to determine this case and reach the outcome each suggests by taking those allegations at their highest. Even if the requirements of Article 13(b) are proved, I must carefully consider whether sufficient measures exist and/or can be put in place to ameliorate any grave risk that has been identified. I will turn now to the facts of this case and revert to the application of the law later. The background Piecing together the background to this case from the statements is not an altogether easy task and I have no doubt that my synopsis will not be completely accurate. Any deficiencies in the foregoing narrative do not in my judgment prevent me in any way from deciding this case according to the law and in a manner fair to both parties, particularly bearing in mind the summary nature of the jurisdiction. F is an Irish national and habitually resident in Ireland. He was born in Dublin and is 32 years old. He holds an Irish passport. He is a joiner by trade. He has four criminal convictions. In 2011, he was convicted of two offences of assault causing harm and was given a two-year and a three-year suspended sentence. In 2021, he was convicted of possession of drugs for the purpose of supply and was given a four-month suspended sentence. The same year he was convicted for speeding and fined. In July 2024, he was convicted of four drug related offences (including possession for the purposes of supply). All four offences occurred on 3 December 2021. He was given a nine month suspended sentence. M is also an Irish national and passport holder. She is 45 years old. She worked in Ireland as a domestic cleaner. She has three criminal convictions. Two convictions related to driving offences and one, on 21 July 2022, related unlawful possession of drugs. That offence occurred on 3 December 2021. She was fined. The parties met in 2016, some eight months after the birth of M's third child, [RC], who is 9 years old. M's older two children are A and B, who are now in their twenties. RC's father has played no part in her life. F has always treated RC as his daughter and it is my understanding that RC believes that F is her father. F says that he took an equal and active role in both children's upbringing. M maintains that she was their primary carer. She has certainly been primary carer since the parties' separation. The parties moved in together when DC was born in October 2017. They separated in July 2022, according to F, or May 2022, according to M. M alleges that F abused her throughout their relationship. The allegations are very serious including physical abuse, rape and coercive and controlling behaviour. She says the behaviour began in late 2016 and continued throughout the relationship. She describes being grabbed by her arm with force by F who was reminding her that he was powerful. She says he hid her car keys, checked her mileage and read her emails and texts. She alleges that he stole her money and would belittle her and make her feel worthless and that he would call her names everyday and ruin special occasions. She says some of this behaviour was in front of the children. She also recounts fights between the parties when she did not have sex with F. She says on a number of occasions she awoke being raped by F. These allegations are, as I have said, plainly very serious. They are denied by F. At all times when I consider these allegations and their impact on DC and RC, I remind myself of Practice Direction 12J and the serious consequences for children who live with domestic violence. M says at the time of the parties' separation the police raided her home, when F was at a stag party, and found cocaine worth over £2,000. M alleges that F is a cocaine dealer. M says that F told her to say it was hers because she did not have a criminal record. She says she refused. She says the police knew it belonged to F but nothing happened. She says that the police previously stopped F and found a large quantity of cocaine but again nothing happened. She insinuates that F has some kind of relationship with the police. She specifically says that she does not trust the police to protect her and the children. I am not here to make findings of fact but I am mandated to take a robust view of evidence and, in that context, I note that F has convictions relating to drug offences and that those convictions do not include these allegations (M would say, of course, that these would not be recorded anywhere). I further note that the police arrested F for burglary on M's complaint. M further maintains that F's control over her did not stop after separation and that he had people spy on her and report back to him what she was doing or where she was. On separation, F moved to his sister's home which was on or very near to the estate where M lived with DC and RC. He says that he had regular contact with the children seeing them both most days. He says that after a few months this stopped and M refused contact. At some point in 2022, M began taking an active role in caring for her three year old grandson (A's son) and it would appear that A and his partner lived with M for periods of time. At some juncture a guardianship order was made in M's favour in respect of this grandson. F told the police in April 2023 that, in February 2023, M attended his home and, intoxicated, deliberately rammed her car into his car. This is recorded in a transcript of police interview after F's arrest on investigation of burglary and threats to kill [D462]. On 6 March 2023, F issued an application for 'access' to DC and RC in the local District Court. A hearing was listed for 9 June 2023. I understand that both parties instructed and were represented by solicitors at all times during the court proceedings relating to the children in Ireland. On or about the 8 April 2023, F removed his gym equipment from M's home. F says he had M's permission to do so. M says he burgled her home. She reported the alleged burglary to the police. 20. On 10 April 2023, F was arrested for burgling M's home on 8 April 2023 and making threats to kill. In his police interview he admitted that he had said " that I'd love to kill her " on his arrest but he denied threatening her directly saying he did not do so " cos my kids were right there in the garden ". He made a number of disparaging comments about M including saying, '…she's an absolute compulsive liar and that's why I would like to get her sectioned. She's a narcissist' and " I said to her your nothing but a junkie cunt and I am going to try to take my kids full custody" . F was charged and was bailed with conditions. M alleges that F frequently broke his bail conditions and that she was told by the police that he would have to breach his bail conditions fifty times before they would take any action. F denies the breaches and explains that he was allowed to go to his sister's property, implying that the alleged breaches related to his being at and using his sister's property. In May 2023, it would appear that F called the police because he was being denied access to the children. At the June court hearing, an access order was agreed providing for F to have access with DC and RC weekly on Thursdays from 6pm to 8 pm and fortnightly on Saturday and Sunday from 11 am to 6 pm. Unsurprisingly at that hearing, M raised the allegations against F that he had burgled her home and threatened to kill her. At some point, possibly at that hearing or earlier, M applied for and was granted a Protective Order preventing F from approaching or entering M's address. That order apparently remained in place until April 2024. At this hearing the court also made a 'safety order' against M prohibiting her from molesting F . At some point after July 2023, the police dropped the criminal investigation into the allegations of burglary and threats to kill. It would appear that contact or access arrangements went tolerably well and, when the matter returned to court on 31 October 2023, the previous orders were varied to allow access every Friday 5pm to 9pm and every Sunday 11am to 7pm. Provision was also made for access on Christmas Day and St Stephen's Day. The order also recorded F's obligation to pay child maintenance of €65 per child per week. It would appear that F has complied with this obligation. Relations between the parties became problematic soon after the October hearing. On 28 November 2023, F made a statement to the police in which he complained about M's behaviour including threatening messages she had sent to him, allegations she had made of rape in 2017 and her plan to ruin his life. The thrust of the complaint seems to be that M was messaging F in breach of a 'safety order' which limited their communications. He provided the police with recordings of messages from M to F in November 2023. I assume that these are the same recordings which were attached to one of F's statements and which were played in court during the course of Ms McKenna's cross examination of Dr Ratnam. The recordings did little to help me decide this case. They were all of M shouting angrily and berating F on a number of topics. F appears to have made a further complaint to the police on 22 January 2023 about emails he received from M on 20 January 2024. Contact arrangements are said to have broken down in early December 2023. F says this was because M was upset that he planned to introduce the children to his partner, C. As a result, F applied on 27 January 2024 to enforce the previous order. A hearing was fixed for 14 February 2024. M failed to attend and the case was adjourned to 27 February 2024. At that hearing, a welfare officer, was appointed to conduct 'a section 32 1a, 1b' – an enquiry to consider the welfare and voice of the children. F was, under the order, to have contact every Wednesday and Thursday from 5.30pm to 8pm, every Sunday from 12pm to 7pm and every other Saturday 12pm to 7pm. In what might be described the usual way, the order allowed for other contact as might be agreed. The parties availed themselves of the provision for additional contact. F has produced text messages from 29 March 2024, which show M initiating a request for F to have the children for a sleepover. He agreed. It is also clear that M had no concerns about F's long term partner being present at the sleepover. F has also produced texts in which M acknowledged that his partner ' is very good to [her] kids' . It was suggested to me by Ms McKenna that I should infer from this exchange that there was regular overnight contact. Mr Jarman said I should not draw such an inference. I am not finding facts at this hearing but reading those messages leaves me with the impression that, at that stage, the parties had a comparatively good relationship and that overnight contact did not appear to be in any way extraordinary. A further hearing in court had been listed for 8 May 2024. This was adjourned as the section 32 report had not been completed. M says that in May 2024, F's sister, D, met her in a supermarket and shouted abuse at her. She says that D set up a fake Facebook profile. The document she exhibits does not appear to be a fake profile. It is a post marked MS to PN and the contents do not appear to me to accord with the assertion that they show a fake profile. I cannot make any sense of the post. M also alleges that F's sister, G, hacked her emails, deleting G's and F's threats to kill M and take the children away. This is somewhat odd as there is no allegation made elsewhere about threats to kill in emails. At some point, possibly around this time, it would seem that both D and G made applications to the court for 'guardianship orders'. F says that M failed to respond to the applications. It is not clear to me why those applications were made. F says they were made out of a concern for the children's safety. M says that being shouted at by D in the supermarket was the last straw. She says she went home and was suicidal. M says her Family Support Worker saved her life. She was advised to see her GP who told her to sign a voluntary section. She says she was admitted to Hospital and was on suicide watch for 2 nights and then moved to another Hospital for another 5 nights. While she was in hospital, RC stayed with her parents and DC was cared for by F's family. M complains that F did not look after DC but F explains that he was on holiday in Spain. M says that after her discharge from hospital DC did not leave her side and slept in her bed for weeks. The discharge seems to have been in late May or June. On 12 June 2024, M applied to vary or discharge the access order made on 27 February 2024. M says a week after the discharge she received a message on Facebook, threatening to blow up her house if A was at it. The message is dated 18 June 2024. It says ' if your sons back in that gaff its getting blown up' . She implies that this threat was connected to the alleged burglary in April 2024 and the fact that A had witnessed it. She says she was in fear for her life, looked for a refuge in Ireland but none had space. She says that she decided to leave Ireland and flew to England on 18 June 2024 with RC and DC. F says that in fact he last saw the children on 26 June 2024 and that the following day he received a text from M saying she was going to Donegal for a two week holiday. A few days later M told F that she had moved to England permanently and would not be returning. The date of the removal is in dispute but the parties agree that M wrongfully removed DC from Ireland on a date in June 2024. Events since the removal On arrival in England, M and DC and RC stayed in a hotel. On 5 July 2024, they were placed in a refuge, on the basis of M's allegations of domestic abuse. The children started at school in September 2024. On 14 October, M and the children moved to a two bedroom property provided via the YMCA. YMCA services made a referral to the Local Authority which led to a Single Assessment. The assessment was made without M's consent and was terminated on 18 October 2024. On 13 November 2024, the children moved school. No explanation has been given for this move. Meanwhile in Ireland on 19 July 2024, F applied for guardianship orders in respect of both children and took steps to secure the return of both children via the Hague Convention. His application in respect of both children was issued on 28 October 2024 but the fee for issue was paid on 28 September 2024. On 8 October 2024, the hearing in Ireland listed for M's application to vary access arrangements was adjourned as a result of M failing to attend. On 6 November 2024, a guardianship order was made in Ireland in F's favour in respect of DC. The court did not have the power to make such an order in respect of RC, as she is not F's biological child. On 8 November 2024, F's application for summary return under the Convention came before Ms Justice Harris who made location and disclosure orders and standard directions including listing a further directions hearing on 26 November 2024. The judge also gave permission for F to withdraw his application in respect of RC, who does not fall within the ambit of the Convention because she is not F's biological child. The location order was executed on 25 November 2024 and M was personally served the following day. That same day she and the children moved to their fourth address in England. As M's service came so close to the directions hearing on 26 November 2024, Mrs Justice Arbuthnot made an order re-timetabling standard directions and listed the case for further directions on 10 December 2024. On that date the matter came before Mr Justice Trowell who made directions for a further directions hearing on 22 January 2025. On 17 January 2025, M filed her Answer to the application in which she pled two defences, namely that (1) DC objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of his views, Article 13(2) and (2) that there was a grave risk that DC's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation (Article 13(b)). On 22 January 2025, the matter came before Mr Justice Cusworth. The judge listed this hearing and acceded to an application made by M for the instruction of Dr Ratnam as a joint expert. In addition and because M had raised DC's objection as a defence, a CAFCASS officer was directed to produce a report in respect of DC's wishes and feelings. A recital to the order recorded the court's expectation that M would facilitate contact by video between F and DC at least once a week. In early March 2025, M and the children moved to their fifth address in England since arriving in late June 2024. Throughout the period following the removal of the children to England, F had regular contact with the children by video and audio calls. F has produced the entire log of his calls from 11 January 2025 to 6 April 2025. These demonstrate a consistent pattern of calls on Sundays and other days of the week. He has also supplied a complete run of text messages between him and M from Christmas 2024 to about 6 April 2025. The text messages are to a degree illuminating. They demonstrate a number of things. First, the parties are for the most part able to communicate appropriately. Second, on 14 January 2025, M suggested to F that he could travel to England and see DC. F asked if he could ' take [DC] off by myself an bring him and stay in the hotel '. M replied ' I'm sure that won't be a problem' . It appears to have become a problem once M had taken advice. On 5 February 2025, M explained to F that she was waiting to hear from her solicitor and said 'so it looks like nothing will be happening till the court hearing is finished IV been advised not to follow through with the contact as it's a safety issue for me and the kids however their is an option of paying privately for a social worker to give you access but i don't know how that even works maybe discuss that with your solicitor' . Third, on 20 February 2025, M explained to F that she would like to have her passport released to her so she could visit Ireland to see her sisters who were expecting babies. The fourth issue demonstrated in the text messages relates to a plan for DC to go to Ireland to live with F. The family's English social worker visited M and the children on 13 March 2025. She reported to Ms Demery, the CAFCASS officer, that there had been a suggestion that DC was being collected by F and one of F's sisters on 21 March 2025. On 18 March 2025, Ms Demery visited the family home and observed DC who was in a highly agitated state and was under the impression that he was going to Ireland on 21 March 2025. The text messages show that M sent to F a picture of DC's packed bags on 17 March 2025. It is clear from the text messages the following day (18 March) that DC was saying on 17 March 2025 he wanted to go to Ireland but that M thought he had changed his mind. It would appear that this had been the plan since at least 13 March 2025, given Ms Demery's report of what the social worker had said to her. However later the same day (18 March) when the CAFCASS officer was at the house, M texted F and told him to book a flight to take DC back. The following day M reported that DC had changed his mind. She also shared with F part of an email containing advice she had received from her solicitor. Following these communications, M blocked F on her phone and F had no further contact with the children until 2 April 2025. On that day, M issued an application releasing her from the obligation recorded in Cusworth J's order to facilitate contact. That is the background to this case. I turn now to the evidence of Ms Demery and Dr Ratnam after which I will address the information I have about DC. The CAFCASS officer Ms Demery is a very experienced member of the High Court CAFCASS team. Her report is dated 1 April 2025. The court made provision for this report because M pled a defence based on RS's objection to return to Ireland. Ms Demery visited M's home on 18 March 2025 (a Tuesday). She had asked that M bring DC to her London offices according to usual practice. M had explained that because of DC's behaviour this would be impossible. Ms Demery therefore made plans for a home visit on 18 March 2025. She sent DC a letter explaining her role. The letter must have been confusing for DC given that it would appear that for periods between 13 March and 18 March he understood that he was returning to Ireland. Ms Demery's report sets out the investigation she had undertaken which included reading the court bundle prepared for 22 January 2025, Irish police reports and Dr Ratnam's report. In addition, she undertook safeguarding checks in this jurisdiction and communicated with the family social worker and school. Ms Demery had expected to meet M at the station but on her arrival she received an email explaining that DC was refusing to leave home. Ms Demery discovered at this point that M and the children had moved home in early March. This had not been communicated to Ms Demery. Ms Demery reports that M told her DC had been acting out since Sunday 16 March when he spoke to F and was expressing a wish to return to Ireland. On arrival at the home, Ms Demery greeted the children. RC responded but DC made it clear that he did not want to speak to her. Ms Demery attempted to engage with him but he became more and more agitated. He wanted to speak to F. M said F was at work and DC replied ' I don't give a shit that he is still at work I want to speak to him now'. DC told Ms Demery that she preferred life in England ' as it is safer ' but she was unable to articulate why and that she wants to remain in England. DC told Ms Demery that F was coming for him and he really wanted to go with him. DC said that the judge's decision did not matter. He dictated a letter for the judge which read ' Dear Judge, Bring me back to Ireland and I want to live with my dad. From Ryan '. DC then announced that he was going to Ireland ' now ' and left with his bags. He returned to put on his shoes, putting them on the wrong feet and left again. M went after him and brought him back. On his return he told Ms Demery that ' this house is crap ' and said F has a bigger TV. DC went on to say that he would be happy to return to Ireland without M and without RC and even if they returned with him he would want to live with F. DC told Ms Demery that '[This city] is boring, as the children do not come out to play. It's dirty and full of drunk people' . Mr Jarman submitted to me that this sentiment must have come from an adult and that F was the likely adult. I do not necessarily agree with either proposition. DC and RC then fought and DC bit RC. DC then watched TV and stopped interacting with Ms Demery. Ms Demery then reports that DC's bags had been packed since Sunday and that ' there had been some suggestion that F would collect him on Friday 21 March 2025 '. I remind myself that while Ms Demery was talking to DC, M was in another room texting F telling him to book flights to collect DC (the timings of Ms Demery's visit coincide with the texts). M did not tell Ms Demery about these texts. M reported to Ms Demery that DC's one to one support person in school was a woman but this had been changed to a man because DC disrespects women which he learnt from his father. In this context, I note that in Ireland, where DC had two one to one support people in school both were women and no issues seem to have been raised. M told Ms Demery that F would not be able to care for DC if he returned. She said that DC had not slept overnight at F's since separation. The texts, of course, demonstrate a different picture. Ms Demery reports that DC was adamant in his wish to return to Ireland. She noted that this was in stark contrast to his need to take M's dressing gown to school for reassurance. Ms Demery suggests that DC may have an idealised view of what living with F may be like. In assessing DC's maturity she had the benefit of discussions with the family's social worker and former YMCA support worker. She notes that the school considers in some subjects he is working at a stage typical for four year olds. Ms Demery could find no reason for DC to be separately represented and no reason for him to meet her. She concludes that both children are in the highest category of risk of emotional harm as a result of the combination of mental health, reported domestic abuse and substance misuse of both parents. She concludes that domestic abuse is effectively child abuse, irrespective of whether a child directly witnesses it and can have a devastating impact on children. She points out that the children might struggle with forming secure attachments, leading to trust issues and difficulties in establishing healthy relationships. Ms Demery unsurprisingly concludes that although DC does not object to a return there is a question of how much weight can be given to the views of a child of DC's age who has been exposed to so much trauma. I certainly take no account of DC's expressed wish to return given his very low level of maturity. As to the defence of grave risk of harm/intolerability, Ms Demery says in her report that DC would find separation from M and RC ' difficult, given that he has not lived with his father since he was five years old .' She goes on to conclude that F does not appear to appreciate the scale of DC's difficulties and the support that DC would need if he were to live with him. I will give her concluding paragraph in full: 49. If DC is returned to Ireland the Court would need to be satisfied that it is a safe return and that the identified risks to DC's emotional well-being would be recognised by the courts, the police, and children's services in that country. While I appreciate there have been no adverse findings found against F, to ensure the safety of DC should he return, I would recommend a referral through the Central Authority to the Irish Child Protection Services and for there to be a full risk and welfare assessment of DC and his father. The court may also wish to be assured that there are alternative interim care arrangements for DC pending a welfare investigation Ms Demery gave oral evidence and was cross examined by both parties. Ms McKenna, on behalf of F, cross examined Ms Demery at some length about the possible causes of DC's presentation on 18 March, suggesting its roots might be found in the tumultuous changes which had occurred in DC's life since his removal from Ireland. Ms Demery could not opine on these issues. She did make it clear to me that it was very difficult to ascertain how DC was feeling because his presentation was so dysregulated. She re-iterated that he was obviously missing F and Ireland. She also reminded me that she had not interviewed the parents and hadn't delved into the history. She made the point that DC and RC were particularly close as siblings. She told me that DC would likely find a move to Ireland without his mother difficult. Mr Jarman cross examined Ms Demery on behalf of M. She told me that she found it quite shocking that DC behaved so rudely towards her and was surprised he was so dismissive of her. She said that right from the get-go he didn't want to speak to her and was not interested in her. I pause to comment that this behaviour is somewhat less surprising with the knowledge, which Ms Demery did not have when she wrote her report, that M was asking F to book flights. She told me that M had not been able to manage DC's behaviour. She told me that DC and RC have a close relationship but fight a lot and that DC appears to be protective of RC. During this cross examination, there was a very significant exchange in which Mr Jarman asked a question and I asked for clarification. There was some debate in submissions about the exact words. After the end of the hearing, I was provided with an agreed transcript. It is as follows (with underlining added by me): MJKC – I think has been suggested that somehow DC be transported from England to Ireland into sole care of F. You are not advocating separation of DC from M or placement with F? KD - I am not making a recommendation. What I am saying if he were to move to F's care, there would need to be an assessment. It would be preferable if M and sister accompany him. They are his main sources of emotional security. As I said and I appreciate the courts in Ireland are seized, it would need a welfare assessment. I don't think there is anyone other than F who would be in a position to care for him in the interim. M's family have their own mental health difficulties. Judge – If DC returned to live with F and the court is investigating, would you have any concerns? KD - I would have some concerns given the history that has been reported, although obviously there is a lot more to the situation . There doesn't appear to be any treatment, nowhere suggested DC was ill-treated by F. It seems the major issue has been the relationship between the parents and I appreciate there hasn't been a fact-finding hearing on domestic abuse that has been reported. But obviously that has an impact on children whether they are aware of it or not. It is difficult to know, I have not conducted that much of a welfare assessment. There would need to be an immediate welfare assessment of him. I don't think he would be at risk immediately if at all, but to be sure his needs are being met in that environment, that there is an assessment, as otherwise he would be living with F for the first time, without his M and with his partner who he may not be altogether familiar with . I am not saying he doesn't know her, but it would be a major change for him if M and RC do not go. I am just speculating that given how much disruption he has experienced, there could be a reaction if/when he goes to Ireland, even if it is in accordance with what he says he wants This evidence is very significant. I take from it that there is no immediate risk to DC if he is returned to Ireland in circumstances where M refuses to return and he is thereby separated from RC and living with F so long as a welfare assessment is begun immediately. Mr Jarman cautioned me against such an interpretation. I will revert to that in due course. Dr Ratnam Dr Ratnam's report is dated 24 March 2025. Her report is based on a two hour video consultation with M on 21 February 2025 and access to the medical records provided by M. Those records are not complete. M provided a full run of her English medical records (20 or so pages) but only 10 pages of Irish medical records. These cover a period from May 2022 to summer 2024. There are no records predating May 2022 and the 10 pages provided are clearly incomplete. The most glaring deficiency being the records relating to the 5 days in May/June 2024 when M 'self sectioned'. Dr Ratnam chased for a complete set of records but these were not supplied. It is most unfortunate that M failed to supply complete records to Dr Ratnam. Dr Ratnam sets out M's personal history. M described her childhood as ' chaos ', largely due to her mother's mental illness. Her parents separated when she was six. Her step father was also ' a bit chaotic' and M describes herself as being the adult in the house, caring for her siblings and attending to household responsibilities. For a period she lived with her grandmother. Her grandmother died when she was 14. After that she ' went off the rails with drugs' . She was sexually abused by her maternal uncle for a long period. She was ' kicked out' of school aged 14. M began consuming alcohol from the age of 12. In her 20s she was consuming it excessively. She started using heroin at age 15. She stopped when she fell pregnant with A. She started using cocaine in her 30s and last used it in April 2024. She says she was prescribed medication for five days to help her off cocaine. In cross examination Dr Ratnam said that no such prescription medicine exists. M began using cannabis when she was 13 years old and used it on and off until May 2024. M's first significant relationship was with A's father. He left when A was about three months old. She says that he became violent and ' very nasty' . M found parenting A difficult in the first weeks. Her second relationship was with B's father. The relationship lasted 10 years. On separation, B's father took B as M could not cope with two children. She then had a relationship with ES's father which began in 2014 and lasted two years. That man had a ' major cocaine addiction' and was ' mentally ' abusive towards M. She then began her relationship with F. M alleges that F was ' mentally, physically, sexually' abusive to her. She told Dr Ratnam that she would not return to Ireland if DC is required to return. Dr Ratnam records in detail M's past psychiatric history. She explained that hearing F's voice can lead to anxiety. She described the symptoms of her anxiety – she said her " heart is going, stomach doing flips, pins and needles in my face" , along with sweating. Anxiety " drains " her and can cause her to freeze. She described her depression and the symptoms of it including low mood, reduced motivation, reduced interest, reduced appetite, reduced sleep, reduced concentration, poor selfcare and suicidal thoughts. She described her crisis in May 2024 when she had suicidal thoughts. She was subsequently admitted to hospital for seven days. At the time of the assessment M was taking Sertraline and talking therapies. She was to be referred for more therapy regarding PTSD. Dr Ratnam's opinion is in given a series of answers to questions raised in her letter of instruction. The first question is: what is M's current psychiatric or psychological condition? Dr Ratnam considers that M fulfils the criteria for diagnoses of: a. Generalised anxiety with panic disorder. Symptoms of anxiety include racing thoughts, palpitations, an upset stomach, sweating and pins and needles. b. Recurrent depression with symptoms of low mood, reduced energy, reduced interest, reduced appetite, reduced sleep, reduced concentration and suicidal thoughts. c. Post-traumatic stress disorder, which is related to her childhood experiences and also alleged experiences in the relationship with F. Symptoms include flashbacks, nightmares, hypervigilance and avoidance of triggers. Dr Ratnam considered that M's account was indicative of ADHD and that further assessment would be required for a diagnosis. She also noted that M did not fulfil the criteria for a personality disorder diagnosis. The second question was: what would be the psychiatric or psychological impact on M of a return to Ireland? Dr Ratnam says it is likely that M's mental health will deteriorate if she returns to Ireland. The implication of the answer is that such deterioration would appear to include a risk of suicidal ideation. The third question was: what would be the psychiatric or psychological impact on M if DC was ordered to return to Ireland and she did not accompany him? Dr Ratnam says it is likely that M's mental health will deteriorate if DC returns without her. However and importantly in these circumstances, Dr Ratnam said ' I am of the view that any deterioration can be managed because she is in a location where she feels personally safer and settled .' Thus, in those circumstances it is plain to me that the risk of suicidal ideation is much reduced. The fourth question was: if DC was ordered to return to Ireland and M did not accompany him, what would be the impact, if any, on M's ability to parent her other child, ES, and to support the person caring for DC in Ireland? Dr Ratnam was very clear that although issues might arise, with the support identified in the answer to the third question any deterioration can be managed. The fifth question was: what treatment does M require? Dr Ratnam suggests continued use of prescribed anti-depressants, engaging with talking therapies and, once the proceedings are over, engaging with therapy for PTSD. The sixth and final question was: what, if any, protective measures, such as psychological interventions, or any other measure, would be necessary to put in place to safeguard the effect on M's mental health should DC be returned to Ireland? Dr Ratnam suggested that DC should have regular video contact with M during school term without F being present. She also recommended staying contact during school holidays, facilitation of contact in Ireland but avoiding contact between M and F or his family. On 6 April 2025, M's solicitors raised clarificatory questions about Dr Ratnam's report. As a preface they drew to Dr Ratnam's attention paragraphs 59 to 62 of Re B (A Child) [2024] EWCA Civ 1595 . Those paragraphs dealt with the interpretation of Dr Ratnam's evidence in that particular case. I harbour some reservations about the utility of directing experts to legal analysis of expert evidence in other cases but nothing turns on this. There were four clarificatory questions. The first three related to part of Dr Ratnam's answer to the second question, where Dr Ratnam stated ' should M return to Ireland it is likely that her mental health would deteriorate '. Those three questions and the answers to them were as follows: a. The nature and extent of this deterioration in the mother's mental health - Dr Ratnam replied that it was not possible to predict the extent of deterioration. She stated there was a risk of M's mental health deteriorating to the extent where she experiences suicidal thoughts, which she might act on but that it was not possible to quantify this risk. She further stated there was a risk of increased anxiety and exacerbation of symptoms of PTSD but the extent of this could not be predicted. b. The impact [this deterioration] would have on her daily functioning – Dr Ratnam answered that depression can impact on ability to attend to daily activities and that depression likely contributed to the hospital admission in May 2024. She also stated that anxiety and PTSD are associated with avoidance of triggers, which could lead to M avoiding leaving her home as has happened in the past. c. The impact [this deterioration] would have upon her ability to parent DC and RC from a mental health perspective, particularly taking into account DC's additional needs – Dr Ratnam said this had been answered by her in her answer to the original fourth question. In addition, Dr Ratnam was asked to comment upon any historical and/or current potential triggers for a deterioration in M's mental health. She explained that she had already outlined triggers for anxiety and PTSD. She stated that triggers for depression have included M's childhood experiences and relationship experiences as an adult. She pointed out that M's medical notes indicate that the relationship with F is a stress factor. She also identified the nature of her experiences with F's family as alleged. Dr Ratnam gave oral evidence and was cross examined by both parties. She explained that the increase in M's prescription of Sertraline from 50mg to 100mg and then 150mg was not out of the ordinary. She explained that by the time of the video consultation M was not depressed. She was asked about the impact of a return to Ireland. She said at best M's mental health would not improve and at worst it might decline with suicidal ideation. Dr Ratnam was shown M's written evidence in which she admitted taking cocaine in 2022. This was at odds with M's assertion to Dr Ratnam that she had not taken cocaine since her late 30s. Dr Ratnam was unphased by this and at some point said it was not unusual for patients not to be entirely truthful. Voice recordings from November 2023 were played to Dr Ratnam. It was suggested to Dr Ratnam that these demonstrated that M could not be telling the truth about being triggered by communication with F. Dr Ratnam seemed very unphased by these recordings and clearly did not consider they altered her views in any way. I am not surprised. The recordings have not helped me. Mr Jarman asked an important question which went to the question of degree of risk. I was sent an agreed transcript of the question and answer which is as follows (with my underlining): MJKC: You set out the events that are likely to happen for a deterioration, you say you cannot quantify. The nature and extent of the deterioration includes all the things at 507 - suicidal thoughts, increased depression, anxiety, concerns about her PTSD and presents a significant risk to a deterioration to her mental health if she returned to Ireland Dr Ratnam: That is correct This demonstrates that Dr Ratnam considers a return to Ireland represents a significant risk for M of deterioration in her mental health. Two points arise. First, Dr Ratnam was equally clear that staying in England in circumstances where DC returns to Ireland did not present such a risk – in those circumstances a deterioration was likely, but any such deterioration would be manageable. Second, M is adamant that she will not return to Ireland. Information about RS This is not a welfare enquiry and I have only limited information about DC. RS has significant behavioural issues and sensory issues. He is awaiting an EHCP (Education and Health Care Plan) and, I am told, is being assessed for autism. He attends school for a limited period which was 9am – 11am and is now 8.45am to 1pm. Some days he attends without issue and others he does not. He has one to one support. I have his Irish school reports for academic years 2022/2023 and 2023/2024. Both years postdate separation and, of course, predate the removal. In Ireland he had two support staff for one-to-one support. The report for 2022/2023 is very positive: It has been a pleasure to teach DC this year. He is a kind and caring little boy with such an infectious smile. He has definitely put a smile on my face this year with his witty sense of humour. DC has made fantastic progress both socially and academically and he should be very proud of himself! I wish him all the best in Senior Infants. The report for 2023/2024 is also good but caveated: While DC has made progress in many ways throughout the year he is still struggling socially and emotionally DC shows great imagination. DC has made good progress in many areas. Keep up the good work. It has been a pleasure to teach DC this year. I have his support plan which started in October 2023. It outlines concerns with attention difficulties, maintenance of focus and concentration, struggles with listening and communicating and speech. The support review record in June 2024 outlines good progress. The English school records are somewhat less encouraging. I have one page of an SEN report which explains that DC can be rude to adults albeit that this has improved. He is described as being quiet and withdrawn. When he is upset he sits under coats at the back of the class. When he first started at the school he tried to run away regularly. For some reason I only have one page of this document which appears to be a draft. I also have a letter dated 2 April 2025 from the school to M's solicitor. It explains he was admitted on 13 November 2024 and that initially he only attended for 1 hour due to the high levels of support needed. The letter explains that DC has trouble regulating his behaviour and when upset can use rude and racial language. The school notes his strong bond with M, including bringing her dressing gown into school, and with RC. The letter indicates that DC's behaviour is worse on Mondays and suggests that this is caused by contact with his father on Sundays. I pause to remind myself that F has produced records which demonstrate that he communicates with DC on other days as well. When reminded not to use racial or other slurs, DC says F uses them. The letter says that since attending DC has accessed high needs funding and has been assessed by an educational psychologist. Once the school has that report they intend to submit an EHCP to secure more permanent funding. The school comments that M has been supportive and appropriate in her parenting. Within Ms Demery's report I am given some cursory information about the family's involvement with Children's Services. This is largely the narrative of the removal and M's reasons for it. I also have some further information from Ms Demery about school. She reports that she has been told the reduced timetable was made initially because of DC's violent and aggressive outbursts. The school is very positive about M and her engagement and commitment. She reports that the school say DC is clean and tidy. However, he has struggled to make friends and his aggression has acted as a barrier to making friends. The school also reported that DC gave up trying after being told F was coming to collect him on 21 March 2025. Ms Demery also spoke to the family social worker and YMCA support worker. In addition, I have a Single Assessment made by the local authority and the Record of Outcome of s47 Enquiries. These add very little as they merely report what M has told the local authority. So what do I know? I know that DC is a very troubled little boy, with very specific needs, whose troubles appear to have become exacerbated since leaving Ireland. The questions of whether in fact the troubles have been exacerbated and why they have been exacerbated do not need to be addressed by me. I remind myself again that my task is not to consider DC's best interests but merely whether or not M has raised a sustainable defence to this application. M's return M has been adamantine in her approach to her own return to Ireland. She has told Dr Ratnam and Ms Demery categorically that she will not return to Ireland. This is consistent with her written evidence and her approach to DC's possible return in March 2025. I have no doubt that whatever decision I make, M will remain here with RC. The parties' positions and submissions Mr Jarman and Mr Evans sensibly withdrew M's defence of DC's objection to return in light of Ms Demery's written and oral evidence about the events of 18 March 2025. It was quite clear that, whatever might be said about DC's maturity, he does not object to return. In fact, he appears to want to return. As to their submissions in respect of Article 13(b), that there is a grave risk that DC's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation, Mr Jarman and Mr Evans mount a very robust defence on their client's behalf. They identify five strands to this defence: a. Abuse perpetrated by F towards M; b. The deleterious impact on M's mental health of a return to Ireland; c. The intolerability of a return for DC given his particular needs; d. The intolerability of DC being separated from M; and e. The intolerability of DC being separated from RC. Abuse - Mr Jarman outlines in his written opening the extremely serious allegations of abuse against F. These are of the very highest order and include physical violence and rape. They also include examples of egregious coercive and controlling behaviour. It is submitted that this is not a case in which the court can 'confidently discount' that the allegations are true. I accept this submission save in so far as it relates to F's relationship with the police. I believe I can confidently discount M's evidence about this. F's convictions and his arrest on complaints made by M lead me to the conclusion that M's suspicions about police corruption are misplaced. Mental health – it was submitted to me that the likely deterioration in M's mental health were she to return to Ireland – put by Dr Ratnam as a significant risk – would be sufficient to meet the bar. It was submitted that the harm to a child caused by suicidal ideation in that child's primary carer would be of the highest degree. I agree. It seems to me that the significance of that harm would mean that the degree of gravity of risk needed to meet the 13(b) test would be much reduced. I was asked to consider carefully the case of Re B ( supra ). I have done so. I consider that my approach is entirely consistent with its ratio. DC's needs – it was further submitted that the effect on DC of a return to Ireland is further exacerbated by his own needs. M points to the professionals involved who have all expressed concerns for DC. I struggle with this submission. DC had access to additional help in Ireland. There was a family social worker. A court welfare officer had been appointed to report on the children's welfare and DC had access to two one to one support staff at school. I think, on proper analysis this submission may be intertwined with the submission that it is intolerable for DC to be removed from M. Separation from M – it was submitted that it is intolerable for DC to be removed from his mother. M points out that she has always been his primary carer. This submission seems to wander into the territory of DC's welfare and best interests. I am being asked to make a return order. I am not deciding where DC will live in the future. Separation from RC – it was submitted that it would be intolerable for DC to return to Ireland were that to necessitate a separation from RC. The evidence supports the submission that DC and RC have a very close bond. Mr Jarman and Mr Evans say that I must look at these strands holistically and decide whether or not the necessary threshold is reached. They submit to me that the protective measures offered by F are not adequate. They say the defence is made out. Ms McKenna and Ms Watts reminded me of the protective measures offered by F in his statements which included undertaking: a. To fund return fares for DC (and RC if she were to return); b. To provide accommodation for DC (and RC) in his home or, if M returns he points out that she can live with the children temporarily with one of her sisters; c. Not to molest M; d. Not to pursue civil or criminal proceedings against M for abduction; and e. To arrange regular video contact. To these, they added an additional undertaking in closing, namely that F would go immediately to the court in Ireland and set in train the process of a welfare enquiry for the purposes of resolving the custody/relocation dispute which will fall to be determined in Ireland. Ms McKenna submitted that, even taking the abuse allegations made by M against F at their highest, the risk of harm does not reach the bar set by Article 13(b). These allegations, if made out, would certainly in my view be taken into account in any welfare exercise. I think what is meant by this submission is that these allegations can be alleviated by the protective measures offered. Ms McKenna appeared to be attempting to persuade that me that I should discount much of Dr Ratnam's report because the consultation was short and by video, because M had misreported various facts and because M had failed to give her full medical records. I am not with Ms McKenna on this submission. These are summary proceedings and I consider that Dr Ratnam's report is in those circumstances sufficiently reliable and robust. Ms McKenna invited me to consider the case of AT v SS [2015] EWHC 2703 (Fam) . I have done so. It did not particularly illuminate my path. I consider that the Supreme Court decision in Re E (supra ) gives me the greatest guidance to determine this case. As to the submissions made by M in respect of separation from RC, Ms McKenna reminded me of paragraphs 73 and 76 of the 1980 Child Abduction Convention Guide to Good Practice and the need for me to be alive to the need to avoid situations such as this emasculating the purpose of the Convention. She also reminded me that I must assume that there are adequate and effective measures of protection which exist in Ireland. Given the fact that I have seen that both parties have been protected by court orders in Ireland, that the family had the benefit of a social worker in Ireland and that DC had not one but two support workers at school, I can rest assured that such an assumption is far more than just words. My decision There are two beacons which guide my decision. The first is Ms Demery's evidence that there would be no immediate risk to DC were he to be returned to Ireland and into F's care in the context of a welfare enquiry. F offers an undertaking to begin the process of that enquiry by making an appropriate application to the Irish court. This would presumably be an application for custody. No doubt M could achieve the same outcome by applying immediately for a relocation order. Mr Jarman says that such an enquiry might take many months. I do not know how long such an enquiry will take but I am quite sure the time it takes will be proportionate and I consider, given Ms Demery's evidence that there will be no risk to DC pending that enquiry. The second beacon is the fact that M says she will not return to Ireland, and I believe she is telling the truth, and so there is no possibility of a grave risk of harm to DC arising from M's mental health. Any deterioration in M's mental health will be managed, because she will be staying in England. How do these beacons help me? I must look holistically at all the strands of M's defence but I must guard against applying a quasi-welfare test. The outcome I determine may not seem to me to be in DC's best interests but I remind myself that if I send DC back to Ireland, the Irish court will evaluate and protect DC's best interests. The allegations of abuse made by M are of the highest severity. Ms Demery was alive to those allegations and their potential impact in any welfare enquiry. Nonetheless she was satisfied that there was no immediate risk in the context of a welfare enquiry. I am satisfied that M will stay in England if DC is returned to Ireland. Therefore there are no concerns which arise as to M's mental health which could be described as presenting a grave risk of harm to DC. As to DC's particular educational and other needs, I do not believe that his removal to Ireland will put him in an intolerable position. There are clearly state resources which will be available to him. Separation of DC from M and RC is far from ideal. Were I applying a welfare standard, I would probably come to a different conclusion. I note that when M was admitted to hospital in May 2024, she looked to F to look after DC. I accept that those were very different circumstances but I do not think that placing DC with his father temporarily will put DC in an intolerable position. It is clear that he has spent overnight time with F since separation albeit only on very few occasions. It is also clear from the texts that M has a high regard for F's partner and there is no reason to believe that F's home is in any way inadequate nor that F will be unable to provide adequate care. My conclusion is that looking at the defence holistically and bearing in mind the protective measures offered, I have no doubt that the high bar set by the defence is not reached. I therefore order that DC be returned to Ireland. F must give the undertakings set out above in my order. Practical arrangements In his third statement, F suggested that DC could return to his Irish School after the Whitsun break on 5 June 2025. This to mind should be a back stop. My order is that DC should return to Ireland by no later than 25 May 2025 but that in the event a school place can be obtained earlier, he should return to Ireland at least 5 days before that date. It was suggested in submissions that the family social worker should arrange the hand over in M's local area. I approve this suggestion. In the unlikely event that M changes her mind and decides to return to Ireland, I would expect DC to live with her pending the welfare enquiry. The undertakings given by F should make allowance for both scenarios. I invite counsel to draw an appropriate order. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII