Re S (A Child) (Abduction: Article 13(b): Mental Health)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Peter Jackson,Lord Justice Stuart-Smith |
| Judgment Date | 28 February 2023 |
| Neutral Citation | [2023] EWCA Civ 208 |
| Docket Number | Case No: CA-2022-001880 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 208
Lord Justice Moylan
Lord Justice Peter Jackson
and
Lord Justice Stuart-Smith
Case No: CA-2022-001880
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
MRS JUSTICE ARBUTHNOT
FD22P00036
Royal Courts of Justice
Strand, London, WC2A 2LL
Anita Guha and Emily Mitchell (instructed by Dawson Cornwell LLP) for the Appellant
Michael Gration KC and Paul Hepher (instructed by Sills and Betteridge Solicitors LLP) for the Respondent
Hearing date: 7 December 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 28 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The mother appeals from the order made on 7 September 2022 by Arbuthnot J under the 1980 Hague Child Abduction Convention (“the 1980 Convention”) by which she ordered the summary return of the parties' child, S aged 6, to Australia. The judge decided that the mother had failed to establish the exception to a summary return order under article 13(b), which was the only exception under the 1980 Convention relied on by the mother.
The mother has another child, A, aged 9. Although he lived with the mother and the father after the mother moved to Australia in 2015, A was not included within the proceedings because the father has no rights of custody in respect of him and no separate application was made by the father. As explained further below, the mother decided that A should remain in England. The judge did not criticise this decision and clearly accepted that it was motivated by what the mother considered was in A's best interests.
The mother has had longstanding, chronic mental health problems with acute, severe episodes as set out below. Expert psychiatric evidence was obtained for the purposes of the proceedings from a Consultant Psychiatrist, Dr Ratnam.
The mother relied on a number of matters in support of her case that article 13(b) was established. These included allegations of physical abuse in respect of her and of the children; that the father emotionally abused her by being coercive and controlling in their relationship; the impact of a return to Australia on her mental health; and the effect on S of his being separated from A.
The judge considered each of the matters separately and decided that none of them established a grave risk of harm within the scope of article 13(b), save for the potential impact on the mother's mental health. In that respect, the judge decided, at [144]:
“I am satisfied that without the protective measures the grave risks to S of a return to Australia are that his mother's mental health would decline and she will not be capable of caring for him physically as happened when she went into hospital in April 2020 or emotionally which may affect his own psychological health in the medium to long term and be an intolerable situation for him. Without the protective measures the Article 13(b) exception would be made out.”
The judge then decided, at [147], that the “protective factors which the father has offered satisfy the safeguards suggested by Dr Ratnam”. The “most important ones are the ones relating to the mother's mental health”. After stating, at [148], that “there is a risk that the stress and anxiety will reduce the mother's ability to respond to treatment and will worsen her mental health”, the judge concluded that:
“the safeguards, in particular the professional support for her mental health which will be set up in advance and her continuing ability to access the right medication at the correct dose, will reduce the risk to the mother and S and ensure that the latter will not face a grave risk that he is exposed to psychological harm or placed in an intolerable situation on his return to Australia.” (emphasis added)
The mother's case on appeal was, in summary, that the judge's analysis in respect of the nature of the risk of harm and of the proposed “safeguards” was flawed and that, accordingly, her conclusion is respect of article 13(b) was wrong. It was submitted that the judge did not sufficiently explain her conclusions which, in any event, were based on a flawed analysis of the expert psychiatric evidence and of the nature and extent of the risk of harm to S. It was submitted that, but for these errors, the judge would have concluded that article 13(b) was established and that we should, accordingly, dismiss the father's application.
The father's case, in summary, was that the judge had reached a decision which was open to her and which she has sufficiently explained and justified.
On this appeal, the mother is represented by Ms Guha and by Ms Mitchell, who did not appear below. The father is represented by Mr Gration KC and Mr Hepher, neither of whom appeared below.
Background
The judgment below is not reported.
The mother is a British national aged 31. As referred to above, she has a child by a former relationship, A, aged 9. The father is an Australian national aged 37. The parties met in 2011 in a third country and began a relationship in 2015. The mother and A moved to live with the father in Australia in July 2015.
The mother has always been A's primary carer. His father has had no relationship with him. As set out in the judgment below, the father “is considered by A to be his birth father and … to all intents and purposes is his father”.
The mother worked in Australia between 2016 and 2019. The father worked a shift pattern which meant he was at home for one week and away for one week. The judge described the mother as the children's “primary carer”.
The mother has a history of chronic mental health issues which escalated following her discovery in October 2019 that, as described by the judge, “the father had been conducting a four-year extra-marital affair with her best friend”. This precipitated an acute deterioration in the mother's mental health, as described below. The parties separated in or about February 2020 with the mother and the children remaining in the family home.
In April 2020, the mother “self-harmed and attempted to take her own life” and was admitted to hospital for psychiatric treatment. She remained in hospital for five weeks. As set out in the medical records, the diagnosis was “adjustment disorder with depression and anxiety plus ADHD”.
The parties reconciled between June and September 2021. “The relationship continued to be volatile and contributed to the mother's declining mental health”.
The mother left Australia with the children on 11 November 2021 without telling the father. He was initially misled by the mother's sister as to where they were. They have been living in England since then.
The father's application under the 1980 Convention was issued on 17 January 2022. He also commenced proceedings in Australia in which he sought an order that S live with him and that the mother be deprived of parental responsibility.
Convention Proceedings
The mother opposed the father's application under the 1980 Convention initially on the basis of the father's consent and article 13(b). Only the latter was pursued at the final hearing below.
Both parties filed extensive statements and, as referred to above, expert evidence was obtained from a Consultant Psychiatrist, Dr Sumi Ratnam, an adult psychiatrist for 28 years. She has given expert evidence in other cases under the 1980 Convention.
Cafcass was directed to provide a report on A's views on a return to Australia if an order was made that S should return. Cafcass declined to provide such a report on the basis that no application was made in respect of A and, as set out below, the judge refused the mother's further application that they be required to do so. This was not addressed during the course of this appeal but, it seems to me, that it is an issue which might merit further consideration in another case. I would, however, note in passing that the result has been that neither child's views or wishes and feelings have been independently provided to the court at a time when children are seen at a very young age in other jurisdictions for the purposes of applications under the 1980 Convention.
The final hearing had initially been listed to take place on 27 and 28 April 2022. This had to be adjourned because, it appears, of the application for expert evidence, which was clearly necessary, not being formally made until 3 March 2022, although the application itself is dated 2 February. It was relisted for 9 and 10 May 2022. At that hearing the judge heard oral evidence from Dr Ratnam.
The case was then adjourned to a further hearing on 25 July 2022 because “various aspects of the case were unresolved”. This included the fact that, during the course of the proceedings, the father had removed the mother from his private health insurance. The judge considered that, if the mother was to return to Australia, she “would need additional support provided by the health professionals she had already had dealings with”. Enquiries needed to be made as to whether the mother's cover could be reinstated and “ensuring the mother could use the insurance to pay privately for support for her mental health”. Additionally:
“Another aspect that required further evidence was from the mother in relation to her mental health and from Dr Ratnam in relation to what medical records she had seen. The protective measures or undertakings had to be finalised and finally the mother had to establish A's position about a return to Australia.”
In respect of A's position, as referred to above, the judge refused the mother's application that Cafcass be ordered to provide the requested report. The judge's order of 10 May 2022 recorded that the judge endorsed the...
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