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C v B [2005] EWHC 2988 (Fam)

Father’s application under Hague Convention for order directing return of children to Australia granted.

Family Division: Sir Mark Potter P (21 December 2005)

Father's application under Hague Convention for order directing return of children to Australia granted.

The mother, a UK national, and the father, an Australian national, were married in 1992 in England and moved to Australia in 1998; they had two children: a son born in 1996 and a daughter born in 2000. The father had a history of heavy drinking and was occasionally violent; in January 2002, the parties separated, agreeing that the children would live with the mother and making amicable arrangements for access. In September 2003, the mother applied to an Australian court for parenting and property orders, including permission to relocate to the UK, but the application was refused.

In August 2005, the mother brought the children to England on holiday, with the father's consent; but, instead of returning to Australia at the end of the month, as arranged, she stayed in the UK. The father sought an order under the Hague Convention for the return of the two children to Australia.

There was no disagreement that, for the purposes of Article 3 of the Convention, the mother's retention of the children in the UK was wrongful. It therefore fell to the mother to establish a defence under Article 13(b) that the children would be exposed to the grave risk of physical or psychological harm or otherwise placed in an intolerable situation; or, alternatively, that the older child objected to being returned to Australia, having obtained an age and degree of maturity at which it was appropriate to take account of his views.

The President considered in detail the Australian judgment given in September 2003, and took into account more recent developments, such as evidence that the father had continued drinking while the children were in his care, in breach of a court order; and that the mother's mental condition has been worsening since early 2005, to the extent that, if she had to return to Australia, there was likely to be a severe deterioration in her mental health which, in turn, would affect her parenting ability and place the children in a harmful or intolerable position; and he also had before him a CAFCASS report as to the older child's maturity and his wishes.

As to the views of the older child, the President found that the child had attained an age and degree of maturity at which it was appropriate to take account of his views, but those views were an insufficient basis on which to invoke the discretion of the court to withhold an order for return of the children.

On the subject of 'grave risk of harm', the President found that the issues raised by the mother amounted only to general concerns as to the welfare of the children in the broad sense, and failed to establish the higher threshold required for Article 13. Accordingly, the correct approach was to order the return of the children, so that the Australian court could consider, on the mother's application, the changed circumstances since the September 2003 hearing.

Further, the President commented that the Hague Convention was originally drafted to deal with cases where the abductor was not the child's primary carer, but the other parent who snatched the child away from her. Now, all too frequently the abductor is the primary carer, with the parent left behind acting to protect his rights of access. Because the threshold for an Article 13 defence is not to be decided on the basis of straightforward welfare considerations, but according to the higher standard of serious risk of harm, an order for return to the home country may well prove harsh in a situation where, although the child needs contact with the other parent, his or her need for a secure and happy home with the primary carer is even more important. Thus, the order for return may well prove temporary in a case where the court in the 'home' jurisdiction subsequently decides that ordinary welfare considerations now militate in favour of removal.

Read the full text judgment here