Re M (A Child) (1980 Hague Convention: Abduction: Article 13(b): Mental Health)
| Jurisdiction | England & Wales |
| Judge | Moradifar |
| Judgment Date | 01 December 2023 |
| Neutral Citation | [2023] EWHC 3164 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD23P00406 |
In the matter of;
[2023] EWHC 3164 (Fam)
HHJ Moradifar
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: FD23P00406
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Miss Emma Spruce (instructed by Family Law Solicitor) on behalf of the father
Ms Naomi Wiseman (instructed by Moore Barlow LLP) on behalf of the mother
Hearing dates: 30 November and 1 December 2023
Introduction
M has just turned five years old and is the subject of a dispute between his parents about whether he should be summarily returned to Australia where he previously lived or whether he should remain living in England with his mother who states that an order for his return would place him at grave risk of harm or otherwise an intolerable situation. The mother relies on a number of allegations of domestic abuse and social considerations that would cause her mental health to significantly deteriorate. Additionally, she raises concerns that a return would be highly disruptive for M and the support he is receiving for his additional needs.
The law
The 1980 Convention on the Civil Aspects of International Child Abduction (the ‘Convention’) regulates and provides the framework within which cases such the present case are to be approached by the courts of its member state. Art. 1 of the convention sets out that its objectives are;
“…
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
After setting out the defenitions and the parameters of the Convention, Art. 13, provides for a defence to summary return of the subject child in the following terms;
“ Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that —
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.”
In England and Wales, the approach to the Art. 13(b) defence has been the subject of guidance from the appellate courts from which the following broad principles may be deduced:
Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758;
a. These are summary proceedings and it is rarely appropriate to hear evidence of or in rebuttal of allegations. The court must be mindful of this when assessing the evidence.
b. The person, institution or other body opposing the child's return has the burden of proving that the defence is established.
c. The risk must be so serious that it can be characterised as ‘grave’. A low risk of a serious event such as death or serious injury may be characterised as grave but a higher degree of risk may be required when assessing a lower degree of harm. (see also “The more serious or significant the character of the risk, the lower the level of risk which might ‘properly qualify as “grave” and vice versa” per Moylan LJ Re S (A Child) (Abduction: Article 13(b) Mental Health) [2023] EWCA Civ 208)
d. Harm may be physical or psychological, or
e. Otherwise, place the child in an intolerable situation meaning “a situation which this particular child in these particular circumstances should not be expected to tolerate”. The subjective anxieties of an individual can establish an Art.13(b) defence (Per Lord Wilson Re S (A Child) [2012] UKSC 10, [2012] 2 FLR 442).
f. Art. 13(b) concerns the future and how the situation would be for the child upon his/her return.
Further,
g. When assessing if an Art 13(b) defence is established, the court must consider all of the relevant matters that include the available protective measures ( Re W [2018] EWCA Civ 664) and
h. The efficacy of the protective measurers which include but are not limited to the enforceability of any undertakings offered.
I have also been referred to a number of authorities that I have considered and include;
Re H (Children) (Children: Abduction Grave Risk) [2003] EWCA Civ 355, [2003] 2 FLR 141
Re C (Children) (Abduction: Article 13(b)) [2018] EWCA Civ 2834, [2019] 1
M v G [2020] EWHC 1450 (Fam), [2020] 2 FLR 1295
Re K & S [2023] EWHC 1883
Background
The parents were born and raised in the UK and now hold dual British and Australian nationality. They have known each other since school. In 2013, father relocated to Australia where he continues to reside. On or about May 2017, the mother visited Australia and soon after, the parties commenced their relationship. Later that year they began living together. About a year later, M was born. Sadly, the parents' relationship ended shortly after M's birth but remained living under the same roof until 2021 when father moved out of the property.
Whilst noting that there is a vast factual dispute between the parties about the mother's circumstances in Australia, it appears that the parents were able to agree the arrangements for M's care with the father seeing him regularly. It is also clear that with the agreement of the parties, M visited the UK on at least three occasions and returned to Australia at the end of those visits. It is asserted by the father that there was a standing agreement between the parents that the visits would not be for longer than six weeks.
In the autumn of 2022, the parents agreed that M could travel with the mother to the UK for another visit. The father's expectation was that pursuant to the previous arrangements, the visits would be for no longer that six weeks and that he would be informed of the travel arrangements before M left Australia. On or about the 7 November 2022 the father discovered that M had travelled to the UK without providing the father with the flight details. The father expected M to return by 19 December 2022. M did not return as expected. The parents spent the next four months in correspondence and by August 2023, the father issued his application for M's return to Australia. The proceedings have since continued with the court giving permission for the parties to instruct a Consultant Psychiatrist to assess the mother.
Analysis
I have considered the evidence that is within the bundle that crucially includes three statements from each of the parents with extensive exhibits that are in a separate bundle as well a psychiatric report by Dr Wilkins dated 16 October 2023 who was jointly instructed by the parents to undertake an assessment of the mother.
Dr Wilkins is a Consultant Adult and Forensic Psychiatrist with considerable experience and a highly regarded expert. He assessed the mother in his clinic on 4 October 2023. In his report he summarises his findings as follows:
“…
• At present, [mother] suffers from symptoms of PTSD.
• [The mother]'s mental health is especially vulnerable to factors relating to her relationship with … the father in this case.
• [Mother] would benefit from more assertive treatment of her mental health problems.
• These treatments are available to her in the U.K but should be available to her in Australia provided she has access to these services.
• Overall, [the...
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