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(Family Division; Ryder J; 6 February 2008)
A mother who admitted wrongful removal of the children from France had failed to establish either a grave risk of harm based on domestic violence, or an intolerable position defence based on her assertion that the courts and welfare advisers in France were against her, would not consider her allegations against the father and were prejudiced against her current cohabitant to such an extent that there was a risk that they would remove another, younger, child into state care. The mother's evidence of domestic violence fell short of the clear and compelling evidence required, and in any event the father was offering appropriate undertakings. It was near impossible to assert without a specific and detailed case that the legal process in a country that had signed Brussels II Revised was such that, of itself, it produced intolerability. There had been no apparent representational or linguistic difficulties before the abduction. Comity required the English court to determine that the French courts were just as capable as the English court of fairly investigating and adjudicating on the competing claims of the parties, unless there was the most persuasive compelling evidence to the contrary.
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