F (A Child), Re

In Hague Convention return proceedings, expert psychiatric evidence is permitted only where the material before the court makes it necessary to resolve the issues. The evidence must raise a properly arguable possibility that the parent’s mental health may engage the Article 13(b) exception. A late or inconsistent account may be insufficient. The court indicated that, at the ultimate Article 13(b) stage, describing the burden as very heavy and requiring clear and compelling evidence may be inappropriate. Such language does not invalidate a case-management decision refusing expert evidence where the court was assessing necessity, not deciding Article 13(b), and proceeded independently of disputed domestic-violence allegations. The structured approach for untested allegations remains to consider protective measures and their efficacy.

The mother removed R from Italy to Wales without consent, and accepted that the removal was wrongful under the Hague Convention as incorporated by the Child Abduction and Custody Act 1985. In proceedings for R’s return, she sought permission to instruct a psychiatrist in support of an Article 13(b) defence based on alleged domestic violence and her mental-health history. The deputy High Court judge refused the expert application and ordered R’s return, subject to agreed protective measures. The appeal challenged both decisions. The central issues were whether psychiatric evidence was necessary under the Family Procedure Rules 2010 and whether the Article 13(b) issue had been approached correctly.

The Court of Appeal dismissed the mother’s appeal on all grounds and upheld the order for R’s return to Italy.

1. Expert evidence. Under Part 25 and rule 25.1 of the Family Procedure Rules 2010, expert evidence must be restricted to evidence necessary to assist the court to resolve the proceedings. The material before the judge, including the mother’s late oral account of historic mental-health difficulties, did not establish that her mental health was, or might be, such as to engage the Article 13(b) circumstances. The judge was entitled to treat the late emergence of that account with considerable scepticism and to refuse further investigation.
2. Article 13(b). The approach identified in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 was applicable to untested domestic-abuse allegations: the court should consider whether the allegations, if true, would create a grave risk and, if so, how the child could be protected. Here, protective measures were discussed, agreed and endorsed by the judge.
3. Burden and procedural stage. The judge’s references to a very heavy burden and clear and compelling evidence might have been inappropriate when determining the ultimate Article 13(b) defence. They were otiose in the present context, because the judge was deciding only whether expert evidence was necessary and based that decision on the mother’s mental-health account, irrespective of the truth of the domestic-violence allegations. The mother’s evidence also failed to reach the threshold required for the approach in Re S (A child) (Abduction: Rights of Custody) [2012] UKSC 10. Following the refusal of expert evidence, the mother conceded that the available material could not support Article 13(b). Return was therefore inevitable, subject to the agreed protective measures.

• Court of Appeal (Civil Division): Appeal dismissed on all grounds and the return order upheld: [2014] EWCA Civ 275.
• Principal Registry of the Family Division: On 29 November 2013, HHJ Russell QC refused permission to instruct a psychiatric expert and ordered R’s return to Italy, subject to agreed protective measures.