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The case involves three children – D (8-year-old boy), Y (6-year-old boy) and B (3-year-old girl) – who were wrongfully removed from the Netherlands to England by their mother on 6 or 7 July 2023. Both parents are Sudanese nationals who fled Sudan due to alleged persecution. They lived in Egypt, where D and Y were born, before relocating to the Netherlands in 2020 after the father was granted asylum.

The mother alleges severe domestic abuse, including rape resulting in B’s birth, controlling behaviour and physical violence including beatings in the presence of the children and third parties which required intervention to stop. The mother also claims the father insisted B undergo FGM. The father denies these allegations but admits to striking the mother once; a Dutch neighbour’s statement supports the mother’s claims.

Dutch authorities became involved, imposing supervision orders in August 2023. Attempts to obtain Dutch police records for these proceedings were unsuccessful.

Fearing for her and the children’s safety and doubting the protection from the Dutch authorities, the mother fled the Netherlands via Belgium and Calais to the UK with the children. She and B crossed the Channel in a small boat on 18 July 2023, with D and Y following on 20 July 2023. Upon arrival, the UK rejected the mother’s asylum claim, which is under appeal. The mother and children have since been housed by the Home Office but have had to relocate after the father discovered their whereabouts. Although the father contends that the mother’s care of the children is poor, reports from the children’s school and Guardian suggest otherwise.  

On 13 June 2024, the father applied for summary return of the children, offering undertakings. The mother opposed this under Art.13(b) and based on Y and D’s objections. The hearing was held on 2 December 2024.

Return refused; removal was wrongful, however, the threshold in Art.13(b) of a grave risk that the children’s return would expose them to physical or psychological harm or otherwise place them in an intolerable situation was met and there were insufficient protective measures to meet the grave risk identified.

Grave Risk - Art. 13(1)(b)

The court concluded that returning the children would place them at grave risk of harm or otherwise place them in an intolerable situation. Although there was some doubt regarding the mother’s credibility, the evidence in support of the father’s perpetration of serious domestic abuse was strong. Further, although the father asserts that it was the mother who was the aggressor, he admitted to striking her on the back and the mother’s allegations are corroborated by the Dutch neighbour and reports from Dutch authorities.

When interviewed by the Children’s Guardian, D and Y’s accounts were supportive of the mother’s account that the father perpetrated violence. Both D and Y recounted that the father had beat them and D further recounted instances whereby the father had used physical violence against the mother.

On account of the serious nature of this domestic abuse, MacDonald J was satisfied that the risk of exposure to physical and psychological harm or an intolerable situation was properly characterised as ‘grave’.   

Undertakings

Satisfied that the risk was ‘grave’, MacDonald J proceeded to consider protective measures and whether they were capable of bringing the risk below the threshold. The father asserted that various undertakings given by him – including, on a no admission basis, not to use of threaten violence, intimidate or harass the mother or children, not to pursue FGM, to pay two months’ rent, to pay for flights and to submit to an order preventing him from removing the children from the mother until the first on notice hearing in the Netherlands – comprised sufficient protective measures to mitigate any risk identified.

Although the risks in question are those faced by the children, TB v JB (Abduction: Grave Risk of Harm) [2000] EWCA Civ 337 makes clear that: ‘Primary carers who have fled from abuse and maltreatment should not be expected to go back to it, if this will have a seriously detrimental effect upon the children.’

It is further clear that, when examining the efficacy of protective measures, the court must examine what, in concrete terms, the position of the children would be upon return. Although, the court ordinarily presumes the other Contracting State is able to protect children, the court had been unable to obtain sufficient information from Dutch authorities to deal with the mother’s assertion that she faced inadequate protection in the Netherlands. Further, there was no evidence as to the enforceability in the Netherlands of the protective measures recommended by the Children’s Guardian. In circumstances where there is a need for caution when relying on undertakings as protective measures and where the undertakings offered by the father were the only protective measure in this case, MacDonald J found these were insufficient to mitigate the risk identified.

Objections of the Child to a Return - Art. 13(2)

Y and D both expressed objections to returning to the Netherlands, however, the Guardian concluded that these were objections pertaining to the father and not the jurisdiction of the Netherlands. MacDonald J held that Y and D’s exchanges with the Guardian were too brief from which to extrapolate an objection for the purposes of Article 13. The Guardian did not converse with B on account of her young age.

Non-Convention Issues

There were issues in this case regarding the mother and children’s immigration status in the Netherlands and in the UK, the mother’s appeal against the refusal of asylum being outstanding. A Dutch attorney assisted the court regarding immigration status in the Netherlands. It was confirmed that the Dutch Authorities had commenced the process of revoking the immigration status of the mother and the children because they were no longer residing in the Netherlands.

The Supreme Court decision of G v G [2021] UKSC 9 held that a dependent has protection from refoulement pending the determination of their parent’s asylum application. However, on account of the decisions made with respect to Art 13(b), MacDonald J did not engage with the current state of the law regarding the implementation of return orders pending the determination of an asylum claim, notwithstanding that the Secretary of State had submitted that the return order could be implemented even if the asylum claim was outstanding where return was to a safe third country.

Author: Daisy Holland (Judicial Assistant)