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15 DEC 2005

ABDUCTION: Re D (Article 13(B): Non-Return) [2005] EWHC 2920 (Fam)

(Family Division; Macur J; 15 December 2005)

There had been a serious firearm assault on the English mother in the family home in Venezuela: she had been shot at close range receiving wounds to her face and right shoulder. The assailant claimed that he had been hired to shoot at the mother to frighten her. The mother suspected that the father had instigated the attack, but the father claimed that he had himself been attacked by unknown assailants for political reasons, and that the attack on the mother was probably similar in motive. The mother later removed the children to England, and the father sought the return of the children to Venezuela.

The judge found that there was a real risk of physical danger to the children in ordering a return to Venezuela, and that their psychological welfare would be put at risk if the mother returned pursuant to an order for the children's return. In this exceptional case, the court would exercise its discretion not to return the children. The judge made use of expert reports produced by experts providing therapy to the mother and children, distinguishing such use from the problematic use in Re B (Sexual Abuse: Experts Report) [2000] 1 FLR 871, and nonetheless being careful to take account only of the medical diagnosis and prognosis made upon facts sufficiently supported by the evidence, and not of any determination of the facts by the expert.

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