Re A (Article 13(b): Mental Ill-health)
[2023] EWHC 2082 (Fam)
M (A Child) (1980 Hague Convention : Abduction: Article 13(b): Mental Health), Re
1 December 2023
[2023] EWHC 3164 (Fam)
High Court
A mom took her son from Australia to the UK. The dad wants him back. A judge heard evidence about the mom's mental health and the dad's alleged behavior. The judge decided the son should return to Australia, but gave them until January to prepare because of the mom's concerns and the son's needs.
Key Facts
- •5-year-old M, a dual British-Australian citizen, was taken from Australia to the UK by his mother.
- •The father seeks M's return to Australia under the 1980 Hague Convention.
- •The mother opposes return, claiming it would expose M to a grave risk of harm or an intolerable situation due to alleged domestic abuse and impact on her mental health.
- •A psychiatric report assessed the mother's mental health and its potential deterioration upon return to Australia.
- •The court considered allegations of domestic abuse, the mother's mental health, M's developmental delay, and the availability of protective measures in Australia.
Legal Principles
The 1980 Hague Convention aims to secure the prompt return of wrongfully removed children and ensure custody rights are respected.
1980 Convention on the Civil Aspects of International Child Abduction, Article 1
Article 13(b) of the Convention allows refusal of return if there's a grave risk of physical or psychological harm or an intolerable situation for the child.
1980 Convention on the Civil Aspects of International Child Abduction, Article 13(b)
In Article 13(b) cases, the opposing party bears the burden of proving the grave risk or intolerable situation. The risk must be 'grave'.
Re E (Children) [2011] 2 FLR 758; Re S (A Child) [2023] EWCA Civ 208
The court must consider all relevant factors, including available protective measures and their efficacy.
Re W [2018] EWCA Civ 664
The subjective anxieties of an individual can establish an Article 13(b) defence.
Re S (A Child) [2012] UKSC 10
Outcomes
The court ordered M's return to Australia.
While the mother's anxiety and potential mental health deterioration were acknowledged, the court found these did not constitute a grave risk or intolerable situation for M. Protective measures offered by the father, including financial support and behavioral assurances, were deemed sufficient.
M's return to Australia was set for no later than 23:59 on 10 January 2024.
This allows M to complete the autumn term at his current school, enjoy the holidays, and adjust before starting school in Australia. It also gives the mother time to prepare for the move.