Neutral Citation Number: [2014] EWCA Civ 275
Case No: B4/2013/3578
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
HHJ Russell QC
FD13P02034 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13/03/2014
Before :

LORD JUSTICE SULLIVAN
LORD JUSTICE McFARLANE
and
LORD JUSTICE LEWISON
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	Re:  F (A child)		

Mr Christopher Hames (instructed by Bindmans Llp) for the Appellant
Mr Henry Setright QC and Mr Michael Gration  (instructed by Hanne & Co.) for the Respondent

Hearing date : 26 February 2014
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Judgment
Lord Justice McFarlane: 
1.	This is an appeal arising out of proceedings under the Child Abduction and Custody Act 1985 seeking the return of a child, R, from England and Wales to Italy.   The application was concluded at a hearing before Ms Alison Russell QC, as she then was, on 29th November 2013.   On that day the judge heard a preliminary application by the mother for permission to obtain an expert psychiatric assessment of her mental health and well-being.    That application was refused and is the subject of ground 1 in this appeal.   Later in the day the judge went on to make an order providing for R to return to Italy, but subject to a range of protective measures that had by then been agreed between the parties.   The decision to order a return is also the subject of this appeal.  
2.	The appeal was heard on 26th February 2014.   At the conclusion of the hearing we announced our decision which was that the appeal should be dismissed on all grounds, with our reasoned judgments to follow.  It was accepted that the stay which is currently in place upon the November 2013 order for return to Italy would remain in place pending the handing down of our judgments and the issuing of the order consequent upon our determination.   
Background
3.	The parents met in Italy in June 2009.   R was born on 27th June 2010, by which time the parents were living together.  The mother asserts that from the start the father displayed characteristics of jealousy, aggression and moodiness.   However, her case is that these features became exacerbated following the birth of R and not infrequently erupted into displays of violence towards her by the father.   
4.	The relationship finally ended after one such incident of violence in August 2011.   Within days the mother had obtained protective relief from a local Italian court. 
5.	In October 2011 the juvenile court in Trento, Italy denied a request from the mother for permission to relocate to Wales.   The mother appealed with the result that she was given limited permission to take R to Wales for Christmas 2011.  
6.	Proceedings continued before the Italian court with respect to the protection of the mother and the future arrangements for R’s welfare.   The court appointed a psychologist, Dr Degasperi, to assess the family dynamics and R’s welfare needs.   That report was filed in March 2013.   In April 2013 the youth court in Trento rejected the mother’s further application to move permanently with R to Wales.   On 27th June 2013 the mother’s appeal against that refusal was dismissed.   She has apparently appealed that decision to the Italian Supreme Court, but a hearing date is still awaited.
7.	The mother and R spent the whole of July 2013 in Wales with the agreement of the father and/or the Italian court.   Having returned to Italy in August, the mother records a further significant assault upon her by the father.   The mother claims that her attempts to achieve further protective measures from the social services or the Italian court came to nothing.   On 9th September 2013 she took R to Wales without the father’s consent and without the permission of the Italian court.   It is now accepted that her actions on that day amounted to “wrongful removal” under the Hague Convention as incorporated by CACA l985.  
8.	These Hague Convention proceedings were issued by the father on 30th October 2013.   There were no apparent difficulties in tracing the mother, and she quickly became engaged in the proceedings with legal representation from solicitors who are recognised specialists in the field of international child abduction.  
9.	The primary issue in the present appeal relates to the court’s refusal to permit the mother to instruct an adult psychiatrist as an expert in the case.   The first time such an application was made on her behalf was on 20th November 2013 before Mr Justice Cobb.   In short terms, the grounds for refusal were twofold.  Firstly that the requirements within Family Procedure Rules 2010, Part 25 for the preparation and presentation of an application to instruct an expert had not been complied with and, secondly, that the evidence that was at that stage available failed to establish that it was “necessary” for such an expert to be instructed.
10.	The reference to “necessary” arises from the wording of FPR 2010, r 25.1 which is in these terms:
“Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings.”
11.	The matter came on for final hearing before Ms Alison Russell QC, sitting as a deputy judge of the High Court, on 29th November 2013.  By that stage in the proceedings the mother had accepted that there had been a “wrongful removal” on 9th September.   Before the judge the mother sought to prevent an order for R’s summary return to Italy, which would otherwise be the automatic consequence of a finding of wrongful removal, by asserting that the circumstances of the case were sufficient to trigger the court’s jurisdiction to avoid an order for summary return on the ground that Article 13(b) of the Hague Convention applied on the basis that it was established 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”.
12.	Counsel representing the mother on 29th November, who had not appeared before Cobb J, sought to renew the mother’s application for leave to instruct a psychiatrist.   The judge was persuaded to hear her application on the basis, firstly, that on this occasion the procedural requirements of  FPR 2010, Part 25 had been complied with and, secondly, that counsel sought to bring significant new information relating to the mother’s past mental health before the court.   Having heard submissions the judge refused the application for leave to instruct a psychiatrist.   
13.	Later in the court day, after the parties had had time to reach agreement on a range of protective measures to be put in place in the event that R were to return to Italy, the judge gave a short judgment in which the judge concluded that there was insufficient evidence of a grave risk to R and that consequently the mother’s case under Article 13(b) was not made out.   An order for return to Italy, encapsulating the agreed protective measures, was therefore made.   
Permission to appeal
14.	On 13th December 2013 I heard an application by Mr Christopher Hames, counsel who is now instructed on behalf of the mother, for permission to appeal.   Both Mr Hames and his instructing solicitors were new to the case having been instructed by the mother following the making of the return order.  At that hearing the court had limited information as to the process before Cobb J and Ms Russell.   All that was available, save for the resulting court orders, was a fairly full note of the two judgments given by Ms Russell on 29th November.   The text of those notes indicated that the judge may have used the following phrases when determining the application for permission to instruct an expert:
“The burden of proof on the defending parent under           Article 13(b) is a heavy one and requires clear and completing evidence.”
Secondly, with reference to the substantial history of domestic violence relied upon by the mother, the judge was recorded as saying:
“The court should not base its decision on the basis of untested allegations.”
15.	Similar phrases were recorded in the note of judgment given at the end of the hearing prior to making the final order.   
16.	The deployment of these various phrases established sufficient concern in my mind to justify granting permission to appeal, which I did.   The basis for that concern arises principally from the Supreme Court decision in the case of Re  E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144 in which the joint judgment of Baroness Hale and Lord Wilson gives detailed consideration to Article 13 of the Hague Convention.   Paragraph 32 of that judgment includes the following:
“First, it is clear that the burden of proof lies with the "person, institution or other body" which opposes the child's return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities.”

17.	Later, at paragraph 36, the following appears:
“There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.”
18.	At the time that I granted permission to appeal, and now, it seemed to me that the use of phrases indicating that the burden of proof under Article 13(b) is a “heavy one”, or requires “clear and compelling evidence”, are unlikely to be compatible with the approach delineated by the judgments in Re E.  Further, where there are untested allegations, for example of domestic violence, the structure described in paragraph 36 of the judgment in Re E should be followed.  
The appeal hearing
19.	In preparation for this appeal hearing transcripts of the proceedings before Cobb J and Ms Russell have been obtained.   Contrary to the understanding that Mr Hames and I had on the occasion that permission to appeal was granted, it is now plain that, following refusal of permission to instruct a psychiatrist, the mother, after receiving advice, instructed her counsel to make no further submissions to the judge on the primary issue of her Article 13(b) defence.   
20.	In the light of the mother’s ultimate stance before the judge, my Lords and I formed a preliminary view that Mr Hames’s proposed assault upon the judge’s second judgment and the dismissal of the Article 13(b) defence was no longer arguable.   As I shall explain in due course, this position came to be accepted, at least tacitly, by Mr Hames once we got to that stage of the case.  The focus of the appeal hearing was therefore upon Ms Russell’s preliminary decision to refuse permission to instruct a psychiatrist.  
The instruction of a psychiatrist
21.	The material before the court relevant to the mother’s mental health comes from three sources:
a)	Her witness statement dated 19th November 2013;
b)	Short letters and emails from professionals consulted by her in Italy and Wales;
c)	Instructions given to counsel and relayed to the judge on the morning of 29th November 2013.
I will deal with each of these in turn.
22.	In support of her Article 13(b) case the mother’s then solicitors prepared a very substantial formal statement which ran to 36 pages of text and 82 pages of exhibits.   Much of the detail relates to the allegations of abusive behaviour that she makes against the father. With respect to her mental health the following is recorded:
i)	She reports seeing a psychologist in Italy in the summer of 2011 and that, in particular, in August 2011 the psychologist observed bruising which, it is said, resulted from an attack by the father.   The mother states “I told (the psychologist) how unhappy, scared and anxious I was.  I also told her how I was worried about how it could all be affecting R.   I am awaiting a letter from my Italian psychologist which I will file and serve as soon as the translation is received”.   (Statement paragraph 16);
ii)	Later in August 2011 (paragraph 17) following a further attack “the next day I saw my psychologist, I was physically and emotionally a mess.   She convinced me to go to A&E and to report (the father) to the police”;
iii)	Following a further assault in June 2012 the mother claims to have told her psychologist about the attack;
iv)	The mother records that her psychologist was present at every session conducted by the court appointed psychologist Dr Degasperi;
v)	(Paragraph 41) “There are psychological reports written in Italian which highlight my fear and distress.”  [It is accepted that these reports have not been produced or disclosed into these proceedings];
vi)	The mother saw a psychologist in Wales in the summer of 2013;
vii)	The mother then explains why she has not raised the question of her vulnerable mental health in the Italian proceedings:
“I haven’t taken any medication as I was advised not to do so in Italy, if the courts found out they would have removed R from me.   I was told to downplay my fears etc.   My past depression was never discussed, otherwise I would have lost R two years ago.”
23.	Apart from the mother’s statement, which was not in fact available to the judge in court on the day, the only material  available to Cobb J was a report from Dr Alun Jones, Consultant Psychotherapist, recording that he met the mother for two consultations in Wales, one in July 2013 and one on 15th November 2013.   He gives a brief description of the mother’s feeling of intimidation as a result of her current difficulties and he records that she “describes low-mood, tearfulness and marked anxiety”. In November 2013 he conducted a number of basic screening tests, one indicating a high score for depression and a second indicating a high score for anxiety.   Dr Jones records that scores at that end of the scale indicate a “level of impairment to activities of daily living because of emotional distress”.   No risks to her health were reported and the report states “no ideas of self-harm or harm to others.”  No further intervention is recommended, other than to note that the mother was consulting her family doctor with regards to current health needs. 
24.	Additional written material was available before Ms Russell from two sources: 
i)	A letter from the mother’s GP in Wales recording that he had prescribed medication for anxiety and insomnia on 18th November 2013 (the eve of the hearing before Cobb J) and additional medication for depression three days later on 21st November 2013. 
ii)	An historic report, dated August 2011, from the mother’s Italian psychologist, Dr Matacotta, recording the occasion to which I have already made reference where the psychologist was able to observe bruising following an alleged assault.   The report indicates that the psychologist had last met the mother a month earlier and that counselling sessions with the mother were still ongoing.  The translation of the report states that the mother “shows an extreme anxiety for the reactions her partner might have should she decide to separate from him”.
iii)	An email from Dr Matacotta dated 19th November 2013 confirming that she had been instructed by the mother in the past.   The translation of the email states:  “she is suffering from depression caused by the abuse by her then co-habiting partner:  certainly a forced return to Italy is inappropriate because of possible repercussions on her mental health and consequently on her relationship with the child R.   I also advise you that due to my previous work commitment and the short time I have been given, I will present a more accurate report in the next few days”.
25.	As a matter of record no further report has apparently been received from Dr Matacotta, notwithstanding the mother’s statement of expectation in that regard in her statement and the doctor’s own stated intent in the email.
26.	The final source of material relating to her mental health came from the mother’s oral instructions given to counsel appearing before Ms Russell on the morning of the final hearing.   Counsel relayed those instructions to the judge in the following terms:
“Her mental health difficulties stem back until she was at the end of her first year at university.  She thinks that would have been about l994/l995. She then suffered some kind of breakdown.   Symptoms included panic attacks and anxiety.   At that time she then saw a psychologist and psychiatrist about once a week and she was given various medications (she cannot remember precisely what) but continued thereafter.   Up until 2002 she was on anti-depressants and sleeping pills on and off.   
She then went to Italy.  By 2006/2007 she was clearly suffering further difficulties and was, again, on medication.  She thinks she made about five suicide attempts by overdosing on her medication.  She was in hospital (in Italy) in relation to those matters and thereafter continued on antidepressants until about 2008 and on sleeping pills until the summer of 2009.
She then, of course, became pregnant and had R.   She did not take any medication thereafter, in large part because she was breastfeeding and thereafter, when she did have difficulties, the advice was very much not to go on to any medication again for fear of consequences of how that might be seen as a mother in Italy, albeit that she did then start to see Dr Matacotta.  She thinks that started in about June of 2011.
27.	On the basis of this information counsel submitted that an expert opinion was required to determine whether her client’s mental health would be adversely impacted by a return to Italy and whether the mother would suffer a further breakdown of such seriousness as to impact upon her ability to care for the child.
28.	Having referred to the history given it is necessary to dovetail that into the parallel chronology in the mother’s written statement which chronicles the deteriorating state of her relationship with R’s father.   This can be taken shortly because, in my view, the two do not dovetail in any manner which is supportive of the mother’s case.   Having moved to Italy in 2002 there is then a period where several suicide attempts requiring hospital admission are asserted with medication continuing to be taken until the summer of 2009.   The cessation of medication at that point is significant for it was in July 2009 that she met the father.   She does not record taking any medication or seeking any psychological support in the crucial period between summer 2009 and summer 2011.   Again, summer 2011 is a significant date as the couple finally separated in August 2011 and the local court made protective orders in her favour.   Thus for the entirety of the period during which the couple were in a close relationship, and during which the mother records significant abusive behaviour, her mental health was such that she does not record requiring either professional or pharmacological support.   
29.	In addition to the notes of judgment that were available at the permission hearing, we now have approved transcripts of the two judgments given by Miss Russell on 29th September 2013.   In the first judgment, with respect to the application for permission to instruct a psychiatric expert, the judge, having summarised the evidence that was by then available to her, including the mother’s account relayed on instructions to the court by counsel, makes the following points:
i)	None of the matters reported to the court by counsel are referred to in the mother’s extensive statement or referred to in any of the exhibits to that statement;
ii)	The mother’s solicitors are extremely experienced and the judge found it hard to believe that they would not have included such instructions had they been available;
iii)	No attempt has been made to explain why significant matters concerning her alleged years of ill health only surfaced on the morning of the final hearing.
30.	The judge’s conclusion is contained in one paragraph, paragraph 15, in these terms:
“The burden of proof on a defending parent regarding Article 13 (b) is a very heavy one and requires clear and compelling evidence.   The court should not make findings on the basis of contested and untested allegations.   However, I cannot agree that the evidence that is put before me today shows a grave risk of exposing the child to physical or psychological harm when weighing it in the light of the immediate past and in comparative terms with the child’s life as a whole.   There is no complaint of such an effect on her parenting whilst in Italy up until September of this year and there is nothing to indicate that adjourning the case would enable me to decide the matter any better than I am able to do so at the moment.  I am bound by the terms of the Convention and I give weight to the primary purpose of the Convention which is to ensure the swift return of abducted children.”
31.	The judge therefore refused the application for expert evidence and indicated that she would proceed to determine the case that day.
Mother’s case on appeal
32.	In presenting the appeal on behalf of the mother Mr Hames focussed upon the judgment of the Supreme Court in Re S (A child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 AC 257 and, in particular, paragraph 34: 
“The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother's anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned.”
33.	Mr Hames’s submission was that without a psychiatric report the court should not and could not have proceeded to make a final determination of the mother’s Article 13(b) defence.   
34.	The difficulty with that submission, as Lord Justice Sullivan pointed out during the oral hearing, is that the evidence relied upon by the mother must get to “first base” in order for paragraph 34 of Re S to apply.   In the present case the mother was plainly well able to set out her stall in significant detail regarding the father’s conduct.   Although, in the course of her statement, she did identify some psychological vulnerability whilst in Italy, there is no indication that the problem was serious.   The focus of her statement was upon her, entirely understandable, response to the father’s conduct.   All that Dr Jones and the Welsh GP identified was a significant level of “emotional distress”, their contribution did not go any further.   
35.	More generally, Mr Hames was critical of the judge’s approach.   He drew attention to the manner in which she described the test applicable to Article 13(b):  “Burden of proof….a very heavy one and requires clear and compelling evidence”, and “The court should not make findings on the basis of contested and untested allegations”.   For the reasons that I have given at paragraph 16, those descriptions may well have been inappropriate with regards to the ultimate test under Article 13(b), however, at this stage the judge was not undertaking that exercise.   Her task was to evaluate whether or not there were grounds making it “necessary” for the instruction of an expert.   
36.	Mr Hames is critical of the short and cursory account that he says the judge gave in her summary of the evidence before the court and he is critical of the fact that she made no express reference to the Supreme Court decision in Re S.
Discussion
37.	Despite the commendable efforts of Mr Hames to present the mother’s case in the most attractive light, the reality is, as Sullivan LJ described, that the material relating to her mental health that the mother was able to put before the English court was insufficient to establish that her mental health was, or might be, such as to trigger the circumstances described in paragraph 34 of Re S.    In that respect, the judge’s observations about a heavy burden of proof and clear and compelling evidence were otiose.   In my view the material before the court, even including the instructions given on the morning of the hearing, was insufficient to justify further investigation on the basis described by Baroness Hale and Lord Wilson at paragraphs 32 and 36 of Re E (see paragraph 16 above).
38.	The judge was entitled, as she did, to express considerable scepticism about the manner in which at the eleventh hour the mother had produced the detailed account of her mental health history, when, despite submitting a wealth of other material, this had not been mentioned at any previous stage. 
39.	In addition, for the reasons that I have given at paragraph 28, the account given of mental health difficulties does not, in any event, correspond with the periods of supposed maximum stress during the time that she was actually living with the father. 
40.	Finally, the judge’s description of the approach to be taken to contested and untested allegations was not relevant to this stage of the process.   Her decision to refuse to allow the instruction of an expert was taken on the basis of the mother’s account of her mental health, irrespective of the veracity or otherwise of allegations of domestic violence.   Thereafter, the court’s approach to the domestic violence allegations was exactly on all fours with that described in Re E, namely that a number of protective measures were discussed between the parties and agreed and ultimately approved by the court.   It is not therefore possible to hold that the judge was in error in the process that was adopted, despite the words that she used in her judgment.  
41.	For all these reasons I consider that the judge’s case management decision as to the instruction of an expert is not vulnerable to challenge on appeal.   The material before the court simply failed to establish that such an instruction was “necessary”.   I would therefore dismiss the appeal insofar as it is based upon ground 1.
Consideration of Article 13(b)
42.	As I have already indicated, the mother’s case on the ultimate decision with respect to Article 13(b) is badly compromised now that it is apparent that she instructed her barrister not to make any submissions to the contrary.   Mr Hames sought to submit that, despite the stance taken by his client, the judge was required to analyse the submissions that had already been made on paper prior to the hearing.   He also criticised the judge’s approach in her description of the law, which was in similar terms to that deployed in the first judgment with respect to the expert.   
43.	During the course of submissions we required Mr Hames to confront the reality of the evidential position in the case that existed following the judge’s refusal to sanction the instruction of an expert.   In doing so we invited him to assume that Article 13(b) would be applied to the available evidence in the manner described by the Supreme Court in Re E and Re S.   Faced with that requirement, Mr Hames was forced to concede, as his predecessor had apparently done in conference with her client, that the material before the court was insufficient to support any outcome other than an order for the immediate return of R to Italy.   
44.	I am entirely satisfied that Mr Hames’s concession before this court, which mirrors the position adopted on behalf of the mother before Ms Russell, is the correct one.   Without additional evidence, a claim under Article 13(b) by the mother could not succeed and an order for summary return was inevitable.   All that the court process required was for sufficient protective measures to be put in place to hold the situation pending further process before the Italian court.  In that regard the protective measures were agreed amongst parties and endorsed by the judge.  In the circumstances that I have described, the appeal under grounds 2 to 4 must fail.
45.	In conclusion therefore, I would dismiss the mother’s appeal and uphold the judge’s order.
Lord Justice Lewison
46.	I agree.
Lord Justice Sullivan
47.	I also agree