TG (A Child: location order and disclosure orders) [2017] EWHC 514 (Fam)

A father’s application for the return of his daughter to Ireland was refused where, given his history of domestic violence and previous breach of a non-molestation order against the child’s mother, there was a grave risk that returning the child would cause the mother to suffer such anxieties so as to affect her mental health and create an intolerable situation for the child within the Hague Convention on the Civil Aspects of International Child Abduction 1980 art.13(b). The courts had sought to avoid placing a child in an intolerable situation by extracting undertakings from an applicant as to the conditions in which the child would live when he returned, D (A Child) (Abduction: Rights of Custody), Re [2006] UKHL 51, [2007] 1 A.C. 619 applied. However, although the father had offered non-molestation undertakings, he appeared to have been in flagrant breach of the Irish non-molestation order. A court order could not of itself prevent a perpetrator from acting in a certain way, and the mother was entitled to feel that the Irish order did not adequately protect her. Although Regulation 2201/2003 art.11 prevented the court from refusing to return a child on the basis of art.13(b) if adequate arrangements had been made to secure the child’s protection, the court was not satisfied that such arrangements had been established (see paras 35, 37-42, 44-49 of judgment).