Re A (Article 13(b): Mental Ill-health)
[2023] EWHC 2082 (Fam)
A and R (1980 Hague Convention: Return to Australia), Re
21 August 2024
[2024] EWHC 2190 (Fam)
High Court
A dad wants his kids back in Australia from England. Mom says it's too dangerous because of alleged abuse. The judge decided the kids usually live in Australia and the dad offered enough protection to keep them safe if they go back. So, the kids are going home to Australia.
Key Facts
- •Father (Australian citizen) seeks summary return of two children (A, 5; R, almost 3) to Australia under the 1980 Hague Convention.
- •Mother (British and Australian citizen) opposes return, alleging domestic abuse and a grave risk of harm to children if returned.
- •Children have dual citizenship and spent seven months in England before the alleged retention.
- •Mother initially planned to return to Australia but changed her mind due to lack of job, home, and support network.
- •Father denies abuse allegations; evidence is largely based on mother's assertions with limited independent verification.
- •Expert psychiatric report indicates mother has adjustment disorder, not PTSD, and her mental health could be managed in Australia.
Legal Principles
Habitual residence of a child is a question of fact, focusing on the child's integration into a social and family environment.
A v A, Re KL, Mercredi v Chaffe, Re LC, Re B, Re J, Re M, Re A (A Child)
Under Article 3 of the Hague Convention, removal or retention is wrongful if it breaches custody rights and those rights were exercised or would have been but for the removal.
1980 Hague Convention, Child Abduction and Custody Act 1985
Under Article 13(b), return is not ordered if there's a grave risk of physical or psychological harm or an intolerable situation for the child.
1980 Hague Convention
Assessment under Article 13(b) considers the cumulative effect of allegations, focuses on the future situation, and examines the availability of protective measures.
Re A (Children), Re E (Children), Re S, Re IG, Re C
Outcomes
Father's application for the return of the children to Australia is granted.
The court found that the children's habitual residence was in Australia, not England, and that the mother failed to demonstrate a grave risk of harm or intolerable situation under Article 13(b) given the protective measures offered by the father.