Cambridge Family Law Practice

The father of a little girl abducted by her mother has won an appeal against a dismissal of his application for her return.

The father in the case was Australian while the mother was born in England, later emigrating to Australia and acquiring citizenship there. She worked as a hairdresser and hairdressing teacher. The couple met in 2021 and began to live together the following year. In 2023 a child, referred to in court as ‘A’, was born.

At the original hearing, the presiding Judge explained that:

“The mother has a long history of mental ill health. The father thought it was of about five years’ duration but in fact it goes back much further than that with GP records documenting symptoms of depression and anxiety since about age 15 years.”

In Australia, isolated from her family, the mother continued to struggle with anxiety and depression and developed a dependency on alcohol. The original judge noted that, despite receiving medical treatment:

“…At the end of 2019 she attempted to take her own life whilst intoxicated and was admitted to hospital. She flew to England and recuperated with the care and love of her family.”

The mother’s relationship with the father began following her return to Australia. Then in September 2023, the mother travelled back to the UK with A and both her own mother and grandmother. The father was unable to follow when his visa was refused due to a criminal conviction.

Two months later, the mother returned to Australia with A but the parents’ relationship was beginning to fray and in the words of the judge at the original hearing:

“…the mother felt her mental health was worsening and her thoughts growing darker”.

She was soon diagnosed with post-natal depression. Within weeks of her return, the mother was visited by police officers who wanted to perform a welfare check on the child. They came after the father’s own mother had reported concerns that A might not be safe in her care.

The original Judge explained:

“The mother experienced a mental health crisis characterised by panic and overwhelming fear about the future for her and A in Australia. As she had done after self-harming in 2019, she felt a desperate need for the support of her family. She bought a plane ticket at lunchtime and flew out in the early evening.”

She took A and left without telling the child’s father. Back in England she told A’s grandmother that she was scared the father would try and take their daughter away from her due to her continuing struggles.

The mother has remained in England with A since that date, where she receives:

“…extensive support …from family members.”

The father issued proceedings for the return of A, under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This multi-country treaty provides a legal framework for the swift return of children abducted (taken without permission) from one participating country into another by one of their parents.

As both the United Kingdom and Australia are signatory countries, a legal order for the return of the child issued in one country will be recognised as valid in the other, unless the abducting parent can mount a legally valid defence. Article 13(b) of the Convention is the most commonly cited of these defences: that returning the child would put them at risk of harm or into an intolerable situation.

The mother in this case used Article 13(b) in her defence, claiming that her own mental health would be a risk if she was compelled to return to Australia with A. This would endanger the child, it was suggested, if she experienced another mental health crisis and was unable to look after A properly. This argument was accepted and the father’s application dismissed.

But when he then appealed the ruling, Lord Justice Moylan took a different stance. He explained that, when considering defences under Article 13(b), family courts must:

“…assess the nature of the risk, the likelihood of the risk materialising and the consequences of the risk materialising for the child.”

He continued:

“In a case such as the present, for the purposes of determining whether the circumstances set out in Article 13(b) have been established, this will involve consideration of the nature or extent of any potential deterioration or relapse in the mother’s mental health and the nature or extent of any potential impact on A.”

Lord Justice Moylan concluded that the original ruling had been flawed because the expert evidence submitted had not supported the idea that A would be at significant risk if the mother did experience further difficulties with her mental health after returning to Australia. He explained:

“In summary, the evidence undoubtedly establishes that “there is a significant risk of deterioration or relapse” in the mother’s mental health but it does not establish that the nature or extent of any such deterioration or relapse would be likely to expose A to a grave risk of psychological harm or otherwise place her in an intolerable situation. The nature of the risk to A… is that depression can impact on the ability of a parent to respond “consistently” and can affect attachment with A which could impact on A’s own emotional wellbeing. In these terms, the nature and extent of the potential impact on A are not such as to bring this case within Article 13(b).”

Therefore:

“…I have concluded that the father’s appeal should be allowed and that we should make a …return order under the 1980 Convention.”

Kathryn Evans, one of the partners here at Cambridge Family Law Practice, observes: “Whilst the mother’s mental health challenges are clearly significant in this case, Article 13(b) puts the focus firmly on the risk to the relevant child.”

The full judgement is available to read here.