Once in a while, you read a case and think “well, I’ve never seen THAT before” and this is one of them.
It is an international family law case, which isn’t really my bag, but basically a family broke up in Poland, mum came to UK with the children, dad applied to Court here to ask for her to be made to return to Poland. There are some specific factors which the Court can apply to say “no, not in this case”
So the argument was whether Article 13 of the Convention applied
The Court is not bound to return of the child if the person, institution or other body which opposes its return establishes that –
b) 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.’
I’m being coy about the name of the case, because it rather gives away what is alleged to have happened. I’ll give it at the end.
There are all sorts of allegations of mistreatment and abuse within the case, but the stellar allegation is this one:-
On 28 July 2020 there was a serious incident in which the father crashed his car into an Opel Vivaro minibus in which the mother, the maternal grandmother and the children were travelling. His motive for acting in this way was, he says, to prevent the mother from removing the children from him without his consent.
Okay, you possibly weren’t expecting that. Let’s expand.
The mother’s case is that by the summer (when the twins were aged 4 and the older children will have been 10 and 8), against a background of abusive behaviour by the father, she realised that she needed to get out of the family home ‘for all our sakes’ even if just for a holiday. She sought help from her mother who hired a minibus with a driver and came to collect them while the father was at work. The mother says that she did not at that stage intend to leave permanently.
The father was alerted to the mother’s plans by his grandmother. He immediately left work and drove towards the home in his Audi car. While he was en route, he spotted the minibus and recognised that his family were inside it. Based upon an account given by him the day after the incident [F267], he then diverted his car via ‘a field closed to traffic’ (I assume this to be a grass area separating the two carriageways) and crashed his car into the minibus which was traveling in the opposite direction to him. In his account given on 29 July 2020 he maintained that his manoeuvre had been aimed at blocking the path of the minibus, not actually crashing into it (an explanation he continues to advance); he suggested that the driver of the minibus had increased his speed (an assertion not supported by any other evidence) and said that he had been acting under the influence of emotion and strong agitation as he feared losing contact with his children.
Included within the police disclosure is what appears to be a forensic analysis of the circumstances of the collision. It was estimated that at the time of the collision the father’s Audi was travelling at a speed of approximately 36 km/h (c.22.5 mph); the Opel minibus was travelling at a speed of approximately 54-58 km/h (c.34-36 mph). It was virtually a head-on collision. The front left part of the Audi (the driver’s side) collided with the front left part of the minibus. The minibus was caused to spin round to the right whereupon it crashed into a pillar on its other side. It sustained significant damage on both sides. The Audi, heavily damaged, spun round to the left following the collision.
Goodness. Well, after you crash your Audi into a minibus which your children were travelling in, you probably get a moment of clarity where the realisation of what you did comes into sharp focus.
In the immediate aftermath of the crash, the father left his vehicle and made his way towards the minibus. After unsuccessfully attempting to open a damaged door on one side of the bus, he made his way to the other side and proceeded to open the opposite door. The mother recounts (and the father has not denied this) that the father then grabbed the mother by the arms and attempted to drag her out of the minibus. The occupants of the bus were all screaming, in a state of considerable distress as a result of the father’s actions.
According to the father, he opened the door in the immediate aftermath of the incident as he could hear one of the children shouting ‘Dad’ and wanted to check that he was ok. The father accepts that having opened the door he said to the mother words to the effect of ‘I will not let you steal my kids’. In a witness statement provided to the police, the driver of the minibus stated that the father was shouting at the two women in the bus; he could not hear what he was shouting as the children started to cry loudly. Another witness reported to the police that in the aftermath of the incident he spoke to the father who stated that ‘he had caused the traffic incident deliberately because his wife had once again tried to take his children’.
Insert gif of blonde-haired slowly blinking man here.
The minibus and the Audi both sustained serious damage in the incident.
The mother and the children suffered scratches and bruises from the crash. The mother’s arms were also bruised from the father’s attempts to drag her out. Z suffered a sore neck which was placed in a collar by the firefighters who attended the scene. One of the twins had bruises to his chest from the seatbelt. F had bruising under his eye and on his eye as a result of hitting the seat in front of him. The extent of F’s distress was such that, according to the mother, he had to see a psychologist for therapy. The maternal grandmother had a loss of feeling in a right arm caused by the airbag opening. None of the family, however, required hospital treatment. The mother recalls being so shaken that initially she could not speak. She was given pills by a doctor to help her calm down.
The results of a toxicology report later revealed that the father had been under the influence of amphetamines at the time of the crash.
The incident led to the father’s arrest and detention in prison. He was charged initially with an offence that did not include any reference to drug misuse. Following receipt of the toxicology report the charge was amended to include that as an ingredient of the offence. The full charge is set out at [F186] and is expressed in fairly lengthy terms. It includes that:
‘[the father], intentionally, foreseeing the possibility of a catastrophy (sic) in land traffic and consenting to its committing, brought about a catastrophy (sic) in land traffic endangering the life and health of numerous persons…’
The charge also refers to the father having ‘intentionally violated’ the traffic rules by driving under the influence of amphetamine, having caused an ‘intentional collision’ with minibus and having ‘intentionally damaged’ it.
The father remained in prison for approximately six months and was released on 21 January 2021. He did not challenge his conviction, only the sentence.
The father sought to persuade the Court that this was not a situation to which Article 13 applies, to which I can only say, it is somewhat difficult to imagine what would if this didn’t.
In my judgment, the July 2020 incident (and its aftermath) considered against the background of serious abuse which preceded it, results in the mother’s case satisfying Article 13(b) by some margin. I agree with Ms Jones’s submission that there are no protective measures which can be put in place which will sufficiently mitigate the risks.
In entirely endorse Ms Demery’s characterisation of the mother and the children having experienced a ‘terrifying ordeal’ as a result of the incident. As Ms Demery says, it is only through good fortune that the incident did not result in serious injuries to any of the passengers. The charge which the father faces (or, on Ms Guha’s case, of which he has been convicted) is that he acted intentionally, having forseen the possibility of a catastrophe, and that by his actions he endangered the life and health of his children. He continues to deny that he acted intentionally, but for these purposes I must assume that this was indeed the case. It is difficult, in my view, to fathom how any father could have acted with such reckless disregard for the safety of his own children knowing (as he did) that they were travelling in the minibus at the time; indeed, notwithstanding his use of amphetamines, it is difficult to understand how he could have overcome the ordinary human instinct to press on a brake pedal and/or steer away from danger, but instead use his vehicle as a battering ram against the oncoming minibus.
In my judgment (assuming that the charge he faces is established in full), the father’s actions in crashing into the minibus represent an act of coercive control at the top end of the scale. He was delivering a message to the mother that no matter what she attempted she could not leave his home with the children. If the father’s priority had been, as he asserts, to prevent the abduction of his children he could have turned his car around and followed the mother to her destination. A desire to prevent his children from being taken to stay with his mother-in-law does not, in my view, begin to explain his actions let alone justify them. His mindset at the time is demonstrated by his reaction to the crash: he expressed no remorse and no concern for the state of health of any of the occupants of the minibus; instead he proceeded to attempt to drag the mother from the vehicle, causing her further injury, shouting at her and making a remark which, in my view, was in the nature of a threat.
I entirely accept Ms Demery’s view that the incident has had a lasting impact upon the older children. In my judgment, it is likely also to have had a lasting impact upon the other occupants of the vehicle including the mother and the two younger children (one of whom sustained a seatbelt injury).
In addition to the risks that the father would perpetrate physical and psychological harm against the mother and the children (which I have described above), requiring the children to return to Poland at this juncture would, in my judgment, be highly destabilising for the family. I accept the mother’s description of the father as ‘a dangerous man who feels entitled to do just what he wants’, on the assumption that her account of events is true. I consider that the fears she expressed on 4 November 2020, prior to her departure from Poland, were justified and that were she now to return – in the run up to the December hearing – she would once again, be consumed by fear which she would be unable to conceal from the children. As Ms Demery has noted, for F, returning to Poland would mean “I would have to go back to the country where I have endured so much and experienced so much because of my stepfather”. Both of the older children have memories of the abuse they suffered in Poland; I agree with Ms Demery that F’s reasons for wanting to remain in England are ‘cogent’. The July incident, Ms Demery notes, has had a lasting impact upon the older children and in my view the same is likely to be true for the mother and the younger children. In my judgment it would be intolerable for the children to have to return to Poland in circumstances where the family would be living in a state of fear for their safety. The children are very vulnerable and have had disrupted upbringings in which they have been exposed to abuse on multiple occasions. They should not now be expected to tolerate being required to return to Poland in the circumstances I have described.
In all the circumstances, I have reached the conclusion that magnitude of the risks which the children would face upon a return coupled with the potential consequences for them were those risks to materialise are of such severity that they can be characterised as ‘grave’ within the meaning of Article 13(b). In my judgment, there is a grave risk that they would be exposed to both physical and psychological harm and that they would be placed in an intolerable situation.
I’m very grateful that nobody was more seriously harmed in the crash, and what a truly dreadful experience to have gone through.
The case is
K And M (Children), Re (Abduction: Grave Risk: Intentional Car Crash)  EWHC 2688 (Fam) (14 September 2021)