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S (a Child)  UKSC 10
The Supreme Court has reversed a Court of Appeal decision and reinstated a first instance judgment which declined to order a return of a child to Australia under the Hague Convention.
The British mother, with Australian citizenship, had been cohabiting with an Australian man in Sydney between 2008 and 2011. The father, a former heroin addict, contributed little to the household expenditure. The mother accused him of relapsing in 2011 and called the police who obtained an Apprehended Violence Order (similar to a non-molestation order).
The mother then removed the child to England, without the father's consent or the permission of an Australian court. The removal was therefore in breach of the father's rights of custody under Australian law and so it was 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 the child to Australia under the Convention was under Article 13(b) 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."
The evidence of the mother's psychologist was that, in the event of a return of the child, with the mother, to Australia, her fear of the father's mental state and of his impulsive actions towards her together with the stress of isolation in Australia from her family would be likely to cause clinical depression, which in turn could diminish her secure attachment to the child.
At first instance, Charles J had declined to order the child's return to Australia. The Court of Appeal ordered the child's immediate return. The issue in this appeal was whether that Court should have proceeded on the basis that that there were nothing more than disputed allegations to support the mother's defence. A question also arose about the correct approach to the subjective perceptions of risk held by a parent.
In Re E (Children) (Abduction: Custody Appeal)  UKSC 27 the Supreme Court held that the terms of Article 13(b) of the Convention were plain, that they needed neither elaboration nor gloss; and that, by themselves, they demonstrated the restricted availability of the defence. In that case, the Court held that where disputed allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would placed in an intolerable situation; and if so, the court must then ask how the child can be protected against the risk. If the child cannot be protected, the court should seek to determine the truth of the disputed allegations.
Following a careful appraisal of the documentary evidence, Charles J had held that a number of serious allegations made by the mother against the father were admitted or could not sensibly be denied and that, in respect of her other allegations, she had made out a good prima facie case that she was the victim of significant abuse at the hands of the father. In light of this conclusion, it was unnecessary for Charles J to continue to address the mother's subjective perceptions, as her anxieties had been based on objective reality . The Court of Appeal failed to appreciate that the mother's fears about the father's likely conduct rested on more than disputed allegations and to have regard to the importance of the medical evidence.
The Court of Appeal had specified the crucial question as being whether the mother's anxieties were realistically and reasonably held. The Justices found however that in Re E, the court held that a defence under Article 13(b) could be founded upon the anxieties of a parent about a return with the child to the state of habitual residence, which were not based upon objective risk to her, but were nevertheless of such intensity as to be likely to destabilise the parenting of that child to the point at which the child's situation would become intolerable. It matters not whether the parent's anxieties will be reasonable or unreasonable.
In the recent case of X v Latvia (Application No. 27853/09) the ECtHR (Third Section) had reiterated its apparent suggestion in Neulinger and Shuruk v Switzerland  1 FLR 122 that in a Hague Convention case an in-depth examination of the issues was mandated by the parties' Article 8 ECHR rights to respect for family and private life. The Supreme Court considered that neither the Convention nor the ECHR requires such an in-depth examination.
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