S v C

Heard on 20 February 2012

LORD WILSON (DELIVERING THE JUDGMENT OF THE COURT)

A mother appeals against an order of the Court of Appeal (Thorpe, Longmore and McFarlane LJJ), [2011] EWCA Civ 1385, dated 14 December 2011, that she should forthwith return her son, WS (whom I will call W), and who was born on 13 November 2009 so is aged two, to Australia. The order was made pursuant to article 12 of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 ("the Convention") and to section 1(2) of the Child Abduction and Custody Act 1985 which gives the Convention the force of law.

In making its order the Court of Appeal set aside an order of Charles J, made in the High Court, Family Division, [2011] EWHC 2624 (Fam), dated 30 August 2011, that the application of W's father for an order for his return forthwith to Australia pursuant to the Convention should be dismissed.

In this court the mother is therefore the appellant and the father is the respondent. But there is now also an Intervener, namely Reunite International Child Abduction Centre ("Reunite").

The mother and father have not been married. The mother is British but now also has Australian citizenship. The father is Australian. They lived with W in Sydney until, on 2 February 2011, the mother removed W to England, specifically to the home of her mother, where they have since remained. So Australia was the state in which W was habitually resident immediately prior to his removal. In removing W from Australia the mother lacked both the father's consent and the permission of an Australian court. In such circumstances her removal of W was in breach of rights of custody attributed to the father in relation to him under Australian law and it was therefore wrongful for the purpose of article 3 of the Convention.

The only defence raised by the mother to the father's application for an order for the summary return of W to Australia under the Convention was that provided by article 13(b) of it, namely that:

"there is a grave risk that his…return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

Statistics published by the Permanent Bureau of the Hague Conference on Private International Law indicate that article 13(b) provides the defence against an order for summary return which succeeds more often than any other: see "A Statistical Analysis of Applications made in 2008 under the 1980 Hague Convention", Lowe and Stephens, Cardiff Law School/The Permanent Bureau. Technically the establishment by a respondent of the grave risk identified in article 13(b) confers upon the court only a discretion not to order the child's return. In reality, however, it is impossible to conceive of circumstances in which, once such a risk is found to exist, it would be a legitimate exercise of the discretion nevertheless to order the child's return: see In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, para 55 (Baroness Hale).

Nine months ago, in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144, this court delivered a judgment in which it attempted to set out in clear terms the proper approach to a defence under article 13(b). It held, at paras 31 and 52, that the terms of the article were plain; that they needed neither elaboration nor gloss; and that, by themselves, they demonstrated the restricted availability of the defence. The court did not expect so soon to entertain a second appeal about the effect of article 13(b). It granted permission for the bringing of the present appeal largely out of provisional concern that, by the judgment delivered by Thorpe LJ (with which Longmore and McFarlane LJJ agreed), the Court of Appeal had expressed what it called "the crucial question" in terms which arguably represented not only a fresh gloss on the meaning of the article but one which happened to run directly counter to this court's analysis of its meaning in In Re E. Following announcement of this court's grant to the mother of permission to appeal, Reunite made its application for permission to intervene. In explaining the basis of its application, Reunite expressed identical concern about the Court of Appeal's formulation of "the crucial question"; and it postulated the risk of confusion about the proper approach to a defence under article 13(b) in the absence of clarification by this court.

In her evidence, which, in that Charles J did not receive oral evidence, was only in writing, the mother sought to explain in great detail why, as she alleged, her life with the father in Sydney had become so intolerable that on 2 February 2011 she had returned, with W, to her country of origin. In doing so she made a large number of serious allegations against the father; but she linked her allegations against the father with important evidence about the state of her psychological health while she had been living in Australia. One of the unfortunate features of the proceedings in the Court of Appeal seems to this court to have been an erroneous assumption that the mother's allegations against the father were in effect entirely disputed and thus that, in the absence of oral evidence, an assessment of their truth had lain beyond the judge's reach. In fact, however, the careful study by Charles J of the witness statements, and in particular of about 300 text messages and emails passing between the parents from January until June 2011, which were attached to them, revealed that a number of important allegations made by the mother against the father were admitted or at least, in the light of what he had said in the texts and emails, could not, as his counsel had conceded, realistically be denied.

It was in 2005 that, with her British husband, the mother had gone to live in Australia. They were both nurses; indeed the mother has specialist qualifications in cancer and palliative care. They had no children; separated in 2007; and were divorced in Australia in 2008. In October 2008 the mother began her cohabitation with the father.

It is agreed that, at an early stage in their relationship, the father informed the mother that between 1994 and 1998 he had been a heroin addict and had contracted Hepatitis C. Unfortunately the beginning of their relationship, and of the mother's pregnancy in February 2009, was a period of impending financial disaster for the father; and in May 2009 his import business finally collapsed with massive debts. Indeed the father's mother had offered her house as security for the debts and ultimately, a few months after the mother's departure, his mother reluctantly accepted the need for her house to be sold; she now occupies rented accommodation. Following the collapse of his business the father found poorly paid work as an estate agent. From then onwards he contributed little to the parents' finances and the burden of meeting their household expenditure fell largely on the mother who, other than for several months following W's birth, was working as a specialist clinical nurse in Sydney. But the parties got into debt; and the mother still remains liable to an Australian bank in a sum equal to about £8000.

It is agreed that the father's grave financial problems led to serious alcohol and drug relapses on his part during the two years from early in 2009 until the mother's departure. The extent of his relapses is formally in issue but his emails to the mother impel a conclusion that his formal admission in a witness statement of alcohol abuse only on several occasions and of use of cocaine only on three occasions during that period is far from frank.

The texts and emails begin in January 2011 when the relationship between the parents was breaking down. The father's messages to the mother on 13 January 2011 to "get fucked, bitch" and "I'll…belt ya" were sent when, in fairness to him, he may not have been fully in control of his faculties. On the following day he wrote that he had made terrible mistakes. On 18 January he offered to submit to drug-testing. On any view the evening of 19 January was a crucial day in the breakdown. The mother contends that she found the father injecting himself in the car in their garage and that such was the reason why, as is agreed, she called the police and told him not to enter their flat again. The father admits only that he had been out drinking that day. But, in some of his 14 texts sent to the mother that day, the father offered to go to meetings of Alcoholics Anonymous and/or Narcotics Anonymous every night if necessary; pleaded for another chance; asked for forgiveness and threatened to kill himself. A month later, from England, the mother wrote to the father:

"Those last few weeks in Sydney were literally hell. I was terrified and devastated as well as penniless. You left me with not even enough money to buy nappies for [W]… But you managed to get cash from your credit cards to buy drugs… Even the birth of your son was never enough to stop you drinking and using drugs… That night I found you using in the garage you could have come upstairs and done anything to us—that is why I called the police. [W] deserves to be safe and so do I."

The father's reply was:

"I understand all that but I still need my family and my son needs his father."

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