About this case:

• Citation:
  [2022] NIFam 27
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Judge David McFarland

The court found that the father, living in France, had been involved in continuing and escalating threatening behaviour which attacked the mental state and support network of the children’s mother.

Background

This was an application to set aside a return order made at the end of May in respect of two children. It had been agreed that the children were both habitually resident in France.

The court originally ordered their return, rejecting claims of “grave risk” and the children’s own objection to the order. In reviewing the order, the court noted that jurisdiction to set aside a return order is extremely limited.

However, in Re F [2016] EWCA Civ 546, it was noted that new evidence may result in the High Court reviewing such orders, rather than requiring the delay and inconvenience of an appeal.

New evidence

The mother submitted several pieces of new evidence. For example, two days after the order was made, the father made numerous telephone calls to a couple who live in Northern Ireland, MM and her husband PM. They were acquaintances of the mother and father, and sometimes collected the children from school.

At 9:00pm four calls were made to PM, and two voicemails were later left on MM’s phone. The court considered these to be “extremely abusive and profane”. He described the mother as a “fucking lying bitch”.

The father described MM as a “psychopath”, and made threats to her and her brother to stay away from the boy. He said: “I’m gonna come and rip your fucking life apart […] I’m one mother fucker and I’ll never stop and I’m relentless.”

The court recognised the seriousness of these messages, and did not see them as “the ramblings of a harmless drunk that could be safely ignored with him being left to sleep it all off”.

Another piece of evidence was a text message to PM, sent the next day. It did not withdraw the threats that were made both to MM and to the mother, but did state that he would not contact them again.

There was evidence of a series of WhatsApp messages to a person called V, which included:

A letter from a medical health practitioner set out a consultation with their 13-year-old daughter. It described her low mood and thoughts of self-harm. Although she did not appear to be suicidal, she was extremely worried about the return to France.

An e-mail from Women’s Aid noted that the recent threat has caused the mother to be “anxious, fearful and concerned about her emotional and physical well-being”. A GP’s report also noted that the mother had been prescribed a high level dose of an anti-depressant drug.

The GP report noted: “I feel her mental health is likely to deteriorate should [the mother] return to France.”

Consideration

The question for the court was whether there had been a fundamental change in the circumstances to sufficiently undermine the basis of the return order decision.

The focus was whether the mother could show there was a grave risk that returning would expose the children to physical or psychological harm, or otherwise place the children in an intolerable situation.

The court did not find that the additional evidence relating to the daughter was sufficient.

However, the mother asserted that there had been a fundamental change relating to the father’s conduct and his attacks and threats to the mother and others. The court recognised that this could indirectly impact on the children, potentially placing them in an intolerable situation, as “their main carer is going to be adversely impacted”.

The evidence, in the court’s view, showed a deterioration in the mother’s mental health. The threats that the father was now making were also significant.

The court noted that the comments were also made after the father had won in court. He appeared to be “emboldened by his perceived victory”.

Further, the father never denied sending the text messages, and offered no retraction, excuse or remorse. He made a direct threat to the well-being of the mother which, in the court’s view, was an escalation from his previous actions.

The court also noted that the father’s motive seemed to be to isolate the mother and to deprive her of her support network by threatening her family and friends. This escalation, coupled with the mother’s deteriorating mental health, was a significant change in circumstances.

This, therefore, fundamentally undermined the basis on which the order was made in the first place.

Conclusion

Ultimately, the court found that these were “persistent and virulent attacks by the father”, which were likely to continue and escalate.

The new evidence established that there was an actual and objective risk to returning the children to France, as it would cause a deterioration in the mother’s mental health and would place the children in an intolerable situation.

The court set aside its order of 31 May 2022, and declined to make a return order.