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Case Information
Filed
2026-02-11
Docket
49 entries
Parties
Plaintiff
Tl
Defendant
Mb
Lawyers
Docket Entries
- A final procedural point. The order of Lieven J of 20 November 2025 limited both parties' witness statements to 15 pages of A4, double spaced, font size 12. This order has been breached by both parties. The mother's witness statement was 29 pages and 88 paragraphs. The father's statement in reply (albeit in a larger font) ran to 55 pages and 160 paragraphs. At the same time that he filed his statement, the father issued a C2 application seeking permission to file a longer statement in response, on the basis that he needed to reply to the mother's lengthy statement, although this application was never determined by the court. The parties' actions meant that at the final hearing I was presented with a fait accompli; two witness statements, both considerably in excess of the limit that had been set by court order. This should not happen. Where the court sets a page limit on the length of a witness statement it must be observed, like any other court order. If a party considers that the page limit is insufficient to set out the relevant evidential matters for the court, then an application for an extension should be made as soon as possible. That did not happen in this case.
- It is worth, at the outset, emphasising the summary nature and limited scope of proceedings under the 1980 Convention. As Mostyn J identified in B v B [2014] EWHC 1804:
- The parents are both of Iraqi heritage but have both acquired Irish citizenship. The father moved to Ireland in 1996 and has lived there ever since. The parents met in Iraq when the father had returned to that country for a visit and married there in 2010. The mother subsequently moved to Ireland and lived there until July 2025. Both children were born in Ireland and lived their entire lives there until they were brought to England by the mother in July 2025.
- The parents separated in 2015 and, in 2016, the Irish Court made an order providing that neither parent was to remove the children from Ireland without the consent of the other parent or a court order. The parents obtained a religious divorce in Iraq in 2016 and a civil divorce in Ireland in 2025. Following the parents' separation the children lived with their mother. At one stage following the parents' separation, the father was having regular and unsupervised contact with the children, but this had ceased by early 2024.
- This is a case where very little beyond the chronology that I have set out above is common ground. The mother has made a wide range of allegations of domestic abuse and violence against the father, including physical, emotional and sexual abuse. Both children have also made allegations of abuse, including sexual abuse, against the father. For his part, the father denies these allegations and alleges that the complaints against him have been fabricated and that the children have been intentionally influenced or convinced by the mother into making allegations against him.
- Some of the allegations made against the father, and in particular an allegation of sexual abuse made by N, the younger child, have been referred to the Irish Gardai and to children's social services in Ireland. The children have an allocated social worker in Ireland, and in 2025 public law proceedings were issued by the Irish Child and Family Agency in the Irish courts in relation the children. This resulted in a supervision order being made on 20 February 2025 in the Irish court, enabling the Child and Family Agency to visit the children on such occasions as it considers necessary to satisfy itself as to the welfare of the children and to give the parents any necessary advice as to the care of the children. The children are represented by a guardian ad litem in those proceedings. In May 2025 further orders were made requiring the children to attend a specific address, I understand for the purposes of having supervised contact with the father. A contact session with the father, facilitated by the children's social worker took place on 21 July 2025. Two days later the Irish court extended the length of the supervision order until 23 January 2026, with a review date in October 2025. The following day, 24 July 2025, the mother removed the children from Ireland and brought them to England without the consent or knowledge of the father, Irish children's social services, the children's guardian ad litem or the Irish court. The mother's evidence is that she left because she feared that the supervision order would be extended and further arrangements would be made for the father to see the children.
- Since their arrival in England the mother and children have been living in a refuge. The father's application for a summary return under the 1980 Convention was filed with the court on 16 September 2025. Because the father was unaware of the whereabouts of the mother and children, disclosure orders and a location order were needed. The location order was finally executed on 14 November 2025. Directions were given by Lieven J at an attended hearing on 20 November 2025 and respectful requests for the provision of a substantial amount of documentation from the Irish courts and authorities were made. By this time, a Child and Family Assessment of the mother and children had taken place in England and disclosure orders in respect of these investigations were also made.
- The answer filed by the mother in response to the father's application indicated that she would be relying on Art 13(b) of the 1980 Convention and the children's objections to a return by way of defence to the application. Lieven J therefore also made orders for the children to be seen by Cafcass to report on the children's maturity and upon their views, wishes and feelings regarding a return to Ireland. The children have subsequently been seen by Ms Catherine Callaghan of Cafcass who has prepared a report.
- The matter came before me for hearing yesterday. The father is represented by Mr Bennett of counsel; the mother by Ms Chaudhry of counsel and I am grateful to them both for their submissions. The mother attended in person; the father attended remotely via video-link. Ms Callaghan attended and was cross-examined by both counsel. There was no other oral evidence, although both counsel made oral submissions.
- I did not meet with the children. Although both children (and in particular M) had told Ms Callaghan that they would like to meet with the judge, if possible, no arrangements had been made for them to do so, and both were at school. Ms Callaghan, in her oral evidence also expressed a degree of caution about the children meeting with me, as she felt that they wished to do so to make sure that I was aware of the strength of their feelings. Given that the children were at school, and had not been prepared for a meeting with me, I decided that it would not be appropriate to try to arrange one at short notice, particularly in circumstances where the children's desire for the meeting appears to have been borne from a wish to use it to provide me with evidence, something which falls outside the purpose of such a meeting. The Court of Appeal has previously indicated (Re P (A Child) (Abduction: Child's Objections) [2024] EWCA Civ 1569 at [75]) that considerable care needs to be taken before a judge decides to meet with a child for the purposes of proceedings under the 1980 Convention. I concluded that given the short notice and the lack of any advance preparation for a meeting and the concerns raised by Ms Callaghan a meeting was not appropriate in this case. Where such a meeting is sought the parties should liaise with the court and Cafcass in advance. It should not be left to the day of the hearing itself. I have however written to N and M to explain my decision to them.
- It is common ground that as at the date of their removal from Ireland, the children were habitually resident in that jurisdiction. It is also agreed that the removal was in breach of the father's rights of custody, and thus "wrongful" in terms of the 1980 Convention. This is therefore a case under which this court has an obligation to return the children to Ireland unless the mother can make out one of the defences under Art 13 of the 1980 Convention. Here, as I have previously explained, she relies on two defences; Art 13(b) and the child objections defence.
- There was no dispute between the parties as to the applicable law, although I was referred to a number of different cases.
- Art 13(b) provides that the court is not obliged to return a child under the 1980 Convention if the parent opposing a return establishes that "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." I take the following summary of the principles that are to be derived from the leading cases on Art 13(b) (and in particular Re E (Children) (Custody Appeal) [2012] UKSC 27, [2012] 1 AC 144 and Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 AC 257) from Ms Chaudhry's skeleton argument:
- Ms Chaudhry also relied on the following additional points:
- In this regard Mr Bennett also referred me to the decision of the Court of Appeal in Re IG (A Child) (Child Abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123 and to the summary of Baker LJ at [47]:
- Again, I draw primarily on Ms Chaudhry's summary of the law in relation to this issue which is taken from the decision of the Court of Appeal in Re M (Children) (Abduction: Child's Objections) [2015] EWCA Civ 26; [2016] Fam 1. The summary is as follows:
- If the gateway test is met, then the Court's discretion is at large. MacDonald J summarised the relevant principles applicable to the exercise of this discretion in M v F (Article 13 Thresholds Not Met) [2025] EWHC 2629 (Fam) at para [23(v) onwards]:
- Both counsel made their submissions on the Art 13(b) defence before dealing with the child objections defence. I propose to follow the same order in this judgment.
- On behalf of the mother, Ms Chaudhry raises a lengthy catalogue of allegations against the father. These include allegations of sexual assault on the mother, including rape; allegations of physical abuse up to and beyond the date of the parties' separation, verbal abuse, controlling and coercive behaviour; exposing the mother to a video of a sexual assault of a child; (unsuccessfully) attempting to strand the mother and children in Iraq in 2016; removing the children from the mother's care without her agreement or consent; instructing third parties to attend the mother's house to threaten and pressure her to withdraw a police complaint; communicating with the children as a further way to continue his controlling and coercive behaviour; raising unfounded allegations against the mother to social services and the police; physical and verbal abuse of the children; stalking and placing the mother and children under surveillance; sexual abuse of N; and threats to members of the mother's family.
- Although I do not have any medical evidence as to the mental health of either the mother or children, Ms Chaudhry also sought to raise this as a further issue for consideration in relation to Art 13(b). The mother's evidence is that the elder child, M has expressed fears about returning to Ireland. M has expressed the view both within the refuge and to Ms Callaghan that she would kill herself if she had to return to Ireland. Consideration was given to M receiving trauma therapy, however, this was not considered to be advisable until after a decision as to whether the children should return to Ireland has been taken as it would be "emotionally unsafe for the children to start the therapeutic path and then be abruptly removed from it".
- The mother's allegations are largely denied by the father, who has accused the mother of fabricating and exaggerating events. He points to the concerns of the Irish Child and Family Agency (recorded in a letter provided for the purposes of these proceedings dated 25 November 2025):
- The father points to specific aspects of the evidence from the Irish proceedings as supporting his position. These include:
- It is evident from the above that this is an extremely complex case, involving serious allegations and counter-allegations. Although both private and public law proceedings are currently on foot before the Irish courts, there has not yet been any form of fact-finding hearing, and all of these allegations are essentially untested.
- For the father, Mr Bennett relies on the points that I have set out above and the general tenor of the reports within the Irish proceedings which have raised the question of whether the children are the subject of emotional abuse and neglect by the mother, and on that basis invites me to conclude that I can confidently discount the allegations made by the mother against the father, and thus dismiss her Article 13(b) defence. I do not consider that it is open to me to approach the case in this manner. The mother and the children have made numerous and extremely serious allegations against the father. These allegations may be true as the mother claims. Equally the father may be right that they have been fabricated or exaggerated. I am simply not in a position within these summary proceedings to decide the matter one way or another, and these matters will have be resolved by whichever court takes charge of determining the welfare of the children. In my view the evidential conflict that exists in this case is far removed from the type of case where the court could be justified in confidently discounting the allegations. Accordingly, I must therefore consider both the concrete situation that the children would face on a return and the protective measures proposed by the father to meet the potential risk.
- Taking the allegations of abuse that have been raised by the mother at their highest, there is a risk to the mother and children of this pattern of abuse being continued if the father were to have contact with them outside any contact arrangements that are put in place by the Irish court. Both the Irish guardian ad litem and Ms Callaghan have opined that the father should not have any unsupervised contact with the children until a fact finding exercise has taken place in relation to the mother's and children's allegations. There is no suggestion that they should live with the father on their return. The proposal is that they will be returning with the mother to wholly separate accommodation.
- The extent to which the father has previously sought to have contact with the children outside the Irish court process is disputed; for example, the mother alleges that there was an incident when the father sought to "surprise" N at an event at a mosque in March 2025. The father accepts that he met N on that occasion but says that the surprise was arranged by a friend. However, I consider that the risk of such events can be addressed by the father not being provided with the address of the mother and children and by appropriate undertakings (capable of being recognised and enforced in Ireland under the 1996 Hague Convention) being given by the father as to his conduct.
- The father has offered the following protective measures and soft landing provisions:
- It will be noted that the father's proposals do not extend to the provision of funds for the maintenance and accommodation of the mother and children following a return. The father is of very modest means and is reliant on state benefits in Ireland. He is therefore unable to offer much by way of financial assistance. However, following an exchange that I had with Mr Bennett in the course of his submissions, the father has indicated that he could borrow funds in order to offer 250 per night for three nights initial accommodation for the mother and children (that is to say 750 in total).
- I have also been provided with further information from various sources. In summary:
- I consider that the risks alleged to be posed to the mother and children by the father can be ameliorated by the proposed protective measures. The mother and children can be placed in accommodation to which the father does not know the address. This protection can be reinforced by an undertaking by that father not to make contact with the mother or children, and a further undertaking not to instruct or encourage any other person to make contact with the mother or children on his behalf; undertakings that can be recognised in Ireland under the 1996 Hague Convention. In those circumstances I am satisfied that the Irish courts and authorities who are already engaged with the welfare of this family would be in a position to provide appropriate protection to the mother and children.
- I am also satisfied from the above, that there is a broad range of support that will be available to the mother and children in the event that they return to Ireland and that suitable accommodation is likely to be made available for them.
- I recognise that at present specific accommodation has not been identified, although that is not unusual at the stage when a return order is made under the 1980 Convention. It may be possible for the mother to arrange accommodation in advance of a return, particularly with the assistance of the Irish Child and Family Agency. Even if accommodation has not been arranged in advance of a return, the situation of the mother and children is already known to the Irish authorities, and I am satisfied that they will be in a position to assist them very shortly after their return. The 750 offered by the father should provide the mother and children with the means of obtaining immediate emergency accommodation for a short period should accommodation not be provided in advance. Overall, I am satisfied that the public services that will be available to the mother and children in Ireland on a return, coupled with the limited financial provision offered by the father is sufficient to address the risk that the mother and children could find themselves homeless.
- As I have already explained Ms Chaudhry's Art 13(b) defence is not confined to the future risks alleged to be posed by the father. She relies also on the alleged impact that the past abuse has had on the children. She has referred me to the mother's witness statement which alleges that there were significant changes in N's behaviour following the alleged sexual abuse by the father. N has told the staff at the refuge that she did not feel listened to in Ireland and has experienced disturbed sleep, nightmares and distress when thinking about her father. M has disclosed that a return to Ireland makes her feel suicidal. The children have seen a trauma therapist in England although I am told that therapy cannot start until the issue of whether the children should return to Ireland has been addressed. Additionally, the mother herself complains of experiencing nightmares and panic as a result of the trauma that she has experienced.
- This is not a case where permission has been sought to rely on medical evidence as to the effect on either the mother or children of a return. In the absence of such evidence, I do not consider that I am in a position to find that the effect of a return on either the mother or children would be so severe that it would present a grave risk of physical or psychological harm to the children. I take extremely seriously M's statement that a return to Ireland would make her suicidal. Ms Callaghan considered that M may have said this to emphasise the strength of her views, although the risk that it is genuinely meant cannot be ruled out. However, the support plan that is put forward by the Irish Child and Family Agency provides for the children to engage with a therapeutic assessment and any recommended therapeutic services on a return. I consider that the engagement of the Child and Family Agency and the availability and provision of the proposed services is sufficient to address such risks as arise on the evidence before me. However, I consider that it is important that the Irish Child and Family Agency is provided with a copy of this judgment and other papers in the case, including Ms Callaghan's report in advance of any return taking place, so it is fully aware of the position and of the issues and risks that any proposed therapeutic intervention will need to address.
- I have also considered, carefully and separately, whether a forced return to Ireland in the face of the views expressed by the children would place them in an intolerable situation for the purposes of Art 13(b). Both are strongly objecting to a return, M in particular. However, they will be returning to the country in which they have spent virtually their entire lives. They are very familiar with Ireland and its school system and will still be living with their mother. The return will of course be a significant disruption for them; I have seen evidence that they have made friends and are doing well at their current schools in England. That said, I do not consider that a return to a country and school system with which they are both entirely familiar, in circumstances where they will continue to live with their mother, will have access to support and therapeutic services and will have no contact with their father save to the extent that such contact is ordered by the Irish court, can be said to be intolerable.
- Although I have dealt with the various strands of the mother's Art 13(b) defence individually in this judgment, I make clear that I have also considered them cumulatively. On either basis, given the protective measures offered and the support and other services that will be available to the children in Ireland on a return, I do not consider that the mother has made out the grave risk of physical or psychological harm or intolerability required by Art 13(b).
- The mother also relies on the child objections defence. Both M and N have told Ms Callaghan that they do not wish to return to Ireland and, as I have already indicated, M has said that she feels so strongly about this issue that she would be suicidal if returned. Ms Callaghan prepared a careful report for the court. Her view was that both children were of sufficient age and maturity for their views, wishes and feelings to be considered. She continued:
- For the father Mr Bennett has sought to argue that the gateway is not passed in this case, because it is not possible to discern the children's own wishes and views. He relied on the view of the Irish social worker in her July 2025 report that she felt that she had been unable to ascertain the children's own voice and upon comments by Ms Callaghan indicating her concerns in that regard too. However, I am unable to accept his argument that the gateway has not been passed. I am satisfied from Ms Callaghan's report that both children are of an age and degree of maturity at which it is appropriate to take account of their views and that both children are expressing clear objections to returning to Ireland. I consider that their views are likely to have been influenced by the mother's own position However, I am satisfied, given their ages and the clarity with which they have expressed their views that I should find the low threshold of the child objections exception has been passed in this case and that the discretion to refuse a return on this ground arises.
- Turning then to the exercise of that discretion, I am required to take into account a number of matters. I will deal first with the policy of the 1980 Convention. As Baroness Hale observed in Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55 at [42]:
- In my judgment this is a case where the policy considerations of the 1980 Convention point powerfully in favour of a return. These are Irish children, who until they were brought to England by their mother last July had lived the entirety of their lives in Ireland. They are the subject of ongoing public and private law proceedings in Ireland. They are the subject of an Irish supervision order, and they have an allocated social worker and a guardian ad litem appointed in Ireland to represent their interests in the public law proceedings taking place in that jurisdiction. Any welfare investigation (wherever it takes place) will involve investigation of the parties' very serious allegations and cross-allegations (to the extent that these are relevant to the welfare of the children). This means that disclosure and co-operation is likely to be required from the Irish Gardai and authorities, meaning the Irish courts are clearly better placed to determine those allegations.
- This is a "hot pursuit" case. The proceedings have been brought promptly; the removal took place on 24 July and the application was issued on 16 September 2025. The removal of the children to England took place in breach of an order of the Irish court and in her evidence to this court the mother has admitted that she removed the children because she feared that the Irish supervision order would be extended.
- I consider that all of these matters point strongly towards a return. The need for comity and respect for the Irish judicial process means that I should be very reluctant to allow the mother to manipulate and frustrate the ongoing Irish proceedings by permitting the children to remain in this jurisdiction.
- Against this, I must balance the strong, almost vehement, views that are being expressed by the children and, in particular, M. I am deeply troubled that M should go so far as to say that she will kill herself if returned to Ireland. Whilst I note Ms Callaghan's oral evidence that M may have said this to emphasise the power and strength of her objection to a return, the risk that it is sincerely meant cannot be ruled out, and as I have already held, it is important that the authorities in Ireland are fully aware of this matter in advance of any return.
- In considering the weight to be attached to the children's views, I have considered the extent to which they have been influenced by the mother. I am satisfied that this is a case where the children have been subjected to influence in that regard. I take into account, in particular, in reaching this conclusion the comment of the Irish social worker that she did not consider that she had been able to discern the children's own voice, the views of both the Irish guardian and Ms Callaghan that there was a performative element to the children's presentation and the troubling comment of N, recorded in the Irish guardian ad litem's report about men. These matters, and the evidence more widely, leads me to the conclusion that the children have been exposed to adult matters and to information about the ongoing legal proceedings by the mother. However, although I am satisfied that the mother influenced the children's views, I do not wholly discount them. I have no doubt that these children do not wish to return to Ireland, and that an order that they should be so returned will be distressing to them. It is a factor that I must take into account.
- Ms Chaudhry sought to argue that in child objections cases the court would very rarely return children of M and N's age in the face of such objections. I cannot accept this argument. It is not the law. The views of any child who has reached an age and degree of maturity at which it is appropriate to take account of their views, must be taken into account. However, they are not determinative of the issue. As Baroness Hale observed in Re M (supra) at [46]:
- I have also taken into account the other points that were raised by Ms Chaudhry. The fact that the children are safe and have adapted well to their current life in England, and are doing well at school; the concerns that she has raised about the situation that they would face on a return to Ireland; and her argument that a forced return to Ireland against the children's wishes would be unlikely to assist in repairing or restoring the children's relationship with their father.
- Ms Chaudhry in her skeleton argument also sought to argue that the English courts were better placed than those of the Irish courts to determine the children's welfare. I do not accept this is the case. Virtually all relevant third party disclosure within the welfare proceedings would be in the hands of the Irish Gardai and authorities. Unlike the Irish court, the English court would have no jurisdiction to order the disclosure of these documents. More generally, these are Irish children and I have no doubt that the Irish courts are best placed to decide issues of their welfare.
- In reaching my decision, I have considered all of these matters carefully. I have concluded that I should order the return of the children to Ireland notwithstanding their objections. I consider that the policy reasons for ordering a return in this case are extremely powerful. The Irish courts are already seized of proceedings relating to these children, and indeed the mother has accepted that she removed the children to England to avoid an extension of the supervision order by the Irish courts. Judicial comity and respect for the Irish process means that I consider that I should make an order for the return of these children to Ireland. In reaching this conclusion I make clear that I have fully taken into account the clear wishes that are being expressed by these children and the other welfare matters identified by Ms Chaudhry. However, I do not consider that these factors outweigh the clear and powerful policy reasons why a return must be ordered in this case.
- I will therefore order the return of the children to Ireland. Mr Bennett was seeking an order that the children be returned within 7 days on the basis that the existing Irish supervision order expires on 22 February and that next week will also be half term and a convenient moment for the children to move schools. This seems to me to be unnecessarily hasty. I consider that steps will need to be taken to inform the Irish authorities of this decision, of the information gathered within these proceedings, and of the children's forthcoming return, and that arrangements will need to be made to explore appropriate accommodation for the mother and children. I will hear further submissions from counsel on the date to be included in the return order and any additional provisions, such as requests to the Irish authorities to provide assistance in the provision of accommodation, that need to be included within the return order.
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