Re G (Abduction: Psychological Harm)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Year | 1995 |
| Date | 1995 |
| Court | Family Division |
EWBANK, J
Child abduction – children habitually resident in USA – parents separate – mother having care of children – mother and children visit England by agreement – fail to return – father applying for order for return of children – finding that order for return would have serious effect on mother's physical and psychological well-being – mother would return if children ordered to return to USA – whether effect on mother's health would place children at risk of substantial physical or psychological harm.
Following the birth of their three children the parents, who were English, moved to Texas. In November 1993 the parents separated; and, following a petition for divorce, the mother was given care of the children. In December 1993 it was agreed that the children would go to England with the mother to visit her family. It was arranged that they would return to Texas in February 1994 but they failed to do so. Accordingly the father applied for an order under the Hague Convention for the return of the children. At a hearing before Ewbank, J on 24 March 1994 the mother conceded that her failure to return the children was contrary to the Convention; however she argued that the children's return would expose them to physical or psychological harm or place them in an intolerable situation. Ewbank, J however acceded to the father's application and granted an order requiring the mother to return the children to Texas. The mother appealed and sought leave to adduce further psychiatric evidence. The Court of Appeal granted leave to adduce further psychiatric evidence and, having considered that evidence, ordered a rehearing.
Held – dismissing the father's application for the children's return: Under Article 13 of the Convention the court was bound to order the return of children unless the mother was able to establish that there was a grave risk that the children's return would expose them to physical or psychological harm or otherwise place them in an intolerable situation. It was necessary for the mother to establish a substantial risk of substantial physical or psychological harm. On the evidence now before the court the mother had established that this was a case to which Article 13 of the Convention did apply and the court was not bound to order the return of the children to Texas. The effect of such an order would have meant that there would have been a serious deterioration in the mother's physical and psychological well-being which in turn would have affected the children. Accordingly an order would not be made for the return of the children to America.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1: The Convention on the Civil Aspects of International Child Abduction, Article 13.
Henry Setright for the father.
David Harris, QC and Edward Cross for the mother.
MR JUSTICE EWBANK.This matter was first before me on 24 March 1994. It is an application by a father under the Hague Convention in relation to three children: A, who is 3¼ and twins, M and T, who are one-and-a-quarter. The father and mother are English but went out to Texas soon after the marriage. The father and mother lived in Houston and the father is an assistant professor at the university there. The parties separated in November 1993. There was a petition for divorce issued by the father in December 1993. They reached an agreement in December that the mother would have the care of the children. She wanted to go back to England to see her family and agreement was reached that she should do that but return with the children on 7 February 1994. She did not return to America. The father issued an originating summons under the Hague Convention and that was the matter which came before me on 24 March 1994. It was conceded that the retention of the children in England was...
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