Re A (Article 13(b): Mental Ill-health)
[2023] EWHC 2082 (Fam)
Re: S (A Child)
28 February 2023
[2023] EWCA Civ 208
Court of Appeal
A mother didn't want her child to return to Australia because of her mental health and the child's separation from his brother. The judge said the father's plans to help would be enough, but the appeals court said they weren't, and the child can stay in the UK.
Key Facts
- •Mother appeals a summary return order of her 6-year-old child, S, to Australia under the 1980 Hague Child Abduction Convention.
- •Mother has longstanding, chronic mental health problems, including recurrent depression and generalized anxiety.
- •Mother relies on Article 13(b) exception, claiming a grave risk of harm to S upon return to Australia.
- •Expert psychiatric evidence supports the mother's claim of a potential mental health decline impacting her ability to care for S.
- •Father offers protective measures including financial support, housing, and health insurance.
- •Mother's 9-year-old child, A, remains in England; their separation is a factor in the mother's mental health.
- •The Judge initially finds that article 13(b) was made out, but subject to protective measures.
Legal Principles
Article 13(b) of the 1980 Hague Child Abduction Convention allows a court to refuse a return order if there's a grave risk of harm to the child.
1980 Hague Child Abduction Convention
The risk must be 'grave,' not merely 'real,' and the harm is to the child, though the parent's anxieties can found a defence.
Re E (Children) [2012] 1 AC 144; Re S (A Child) [2012] 2 AC 257
'Intolerable' means a situation the child shouldn't be expected to tolerate.
In re D [2007] 1 AC 619
The court considers the cumulative effect of allegations, not just individually.
In re B (Children) [2022] 3 WLR 1315
The clearer the need for protection, the more effective the measures must be.
Re E (Children) [2012] 1 AC 144
Outcomes
Appeal allowed; father's application dismissed.
The judge's analysis of the risk to S was flawed; she failed to consider the cumulative effect of the mother's mental health concerns and S's separation from A. The protective measures offered by the father were insufficient to mitigate the grave risk to S.