M (A Child) (1980 Hague Convention : Abduction: Article 13(b): Mental Health), Re
[2023] EWHC 3164 (Fam)
Re A (Article 13(b): Mental Ill-health)
8 August 2023
[2023] EWHC 2082 (Fam)
High Court
A mom took her son from Australia to the UK. The dad wants him back, but the judge said no because the mom is very unwell and scared to return, and there's a risk the dad's abuse will continue. Even though the dad offered to help, it wasn't enough to convince the judge the boy would be safe.
Key Facts
- •A, a 3-year-old boy, was taken from Australia to the UK by his mother (Respondent) in April 2020.
- •The father (Applicant) seeks the child's summary return to Australia under the 1980 Hague Convention.
- •The mother opposes the return, citing Article 13(b) – grave risk of harm if the child returns to Australia due to alleged domestic abuse and her mental ill-health.
- •The mother's mental health has significantly deteriorated since the child's arrival in the UK, exacerbated by her mother's death and the legal proceedings.
- •The mother alleges various forms of domestic abuse (physical, emotional, and financial) by the father.
- •The father denies all allegations of abuse and offers various protective measures if the child returns to Australia.
Legal Principles
Habitual residence of a child is determined by factual enquiry into the child's integration into a social and family environment.
Re B (A minor)(Habitual Residence) [2016] EWHC 2174, Re M (Children) [2020] EWCA Civ 1105, Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659
Article 13(b) of the Hague Convention allows a court to refuse a child's return if there is a grave risk that return would expose the child to physical or psychological harm or an intolerable situation.
1980 Hague Convention, Re A (Children) (Abduction: Article 13b) [2021] EWCA Civ 939, Re E (Children) (Abduction Custody Appeal) [2011] UKSC 27, Re S (Abduction: Article 13(b) Defence) [2012] 2 AC 257, Re IG (Child Abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123, Re C (Article 13(b)) [2021] EWCA Civ 1354, Re S (a child) (abduction: article 13(b): mental health) [2023] EWCA Civ 208, In re B (Children) [2022] 3 WLR 1315
The court must consider the cumulative effect of allegations of domestic abuse and mental health issues when assessing grave risk under Article 13(b).
In re B (Children) [2022] 3 WLR 1315
In exercising discretion under the Hague Convention, the court considers various factors, including the child's welfare, swift return, and comity between states.
Re M (Abduction: Zimbabwe) [2007] UKHL 55, Re G (Abduction: Consent/Discretion) [2021] EWCA Civ 139, Re D (A Child) (Abduction: Custody Rights) [2007] 1 AC 619
Outcomes
The father's application for the child's return to Australia is refused.
The mother established, on the balance of probabilities, that returning the child to Australia would expose him to a grave risk of psychological harm due to the cumulative effect of alleged domestic abuse and the mother's severe mental health issues, which would likely deteriorate further upon return. The protective measures offered by the father were deemed insufficient to mitigate this risk.