The High Court has refused a father’s application under the Hague Convention to return his young child to England, finding a grave risk that the child would face harm if sent back.
In a judgment delivered on 25 November 2022, Mr Justice Garrett Simons held that the risk of further breaches of a non-molestation order made against the father could not be adequately mitigated. The order barred him from contacting the mother or going to her home. The judge said the case was among the “truly exceptional cases” in which a return order should be refused.
The child, born in May 2021, was taken from England to Ireland by the mother in or around April 2022. The father sought the child’s return under the Child Abduction and Enforcement of Custody Orders Act 1991. He denied abusing the mother and said he had complied with the non-molestation order. The mother relied on Article 13(b) of the Hague Convention, arguing that return would expose the child to a grave risk of physical or psychological harm or an intolerable situation.
The judge noted that the case proceeded on affidavit evidence without cross-examination. The court therefore did not resolve every factual dispute. It assessed the risk on the basis of the allegations taken at their highest, while considering the evidence and the protective measures available in England.
The order was made ex parte on 22 April 2022 and confirmed on 6 May, when the father consented to it being made final. The judgment identified two later breaches: a message the father sent directly to the mother in June asking for photographs of the child, and an Instagram post in July referring to the child being abducted to another country and the mother being alone in the UK. The judge found the message showed the father knew direct contact breached the order. He described the post as menacing and said the father’s denial of any breach undermined confidence that he would comply in future.
The court also considered the father’s return to the mother’s home after his release from police custody in April, his convictions for violent and property offences, and the mother’s account that he accessed her email and used it to seek her address in Ireland. The judge said the email allegations could not be definitively resolved without cross-examination, but found the evidence persuasive for assessing risk.
The judgment acknowledged that English police and social services had worked to protect the child. It concluded, however, that the non-molestation order could not be treated as effective protection where there was a grave risk it would be breached. The court refused the return application. Its provisional view was that there should be no order as to costs because both parties were represented by the Legal Aid Board; either side could file written submissions seeking a different costs order within 14 days.