Uhd v McKay

On an application for summary return under article 12 of the 1980 Hague Convention, the article 13(b) exception requires a grave risk of harm or an intolerable situation. The court may evaluate the credibility and substance of the evidence within the limits of the summary process. Assuming the alleged risk at its highest is part of that evaluation, but is not an abstract exercise divorced from relevant evidence.

Subjective parental anxieties may establish the exception if they would destabilise parenting so severely that the child’s situation became intolerable. Such claims require critical scrutiny, including consideration of objective cause for anxiety and available protective measures. The ordinary risk of arrest or prosecution following abduction will generally be insufficient.

A father sought the summary return of his three-year-old daughter to Australia under article 12 of the Hague Convention on the Civil Aspects of International Child Abduction. The mother accepted that the child had been habitually resident in Australia, that the father was exercising custody rights and that the removal was wrongful. She relied solely on article 13(b), alleging abuse and contending that her complex post-traumatic stress disorder would impair her ability to care for the child following return.

The father also sought enforcement under the 1996 Hague Convention of Australian orders requiring the child’s return. The mother appealed against their registration and enforcement, relying on the absence of an opportunity to be heard and public policy. The principal questions were whether the alleged objective or subjective risks satisfied article 13(b), whether adequate protective measures existed and whether either exception to recognition was established.

1. Summary return ordered. The mother had not established the article 13(b) exception. Although the court should assume alleged risk at its highest as part of the approach in Re E, that exercise was not abstract. The court could evaluate relevant evidence, including credibility and substance, in a manner compatible with the summary character of Convention proceedings.

2. The alleged objective risk did not reach the required gravity. The mother’s accounts of physical abuse, abuse of her older child, breaches of protective orders and the Australian proceedings were materially contradicted by contemporaneous medical records, primary documents and binding Australian findings. Her accounts had changed and displayed marked exaggeration. Those deficiencies made it unjustified to assume an objective risk capable of satisfying article 13(b).

3. The asserted psychiatric risk also failed. The expert did not confirm a diagnosis of complex post-traumatic stress disorder. His opinion was conditional upon the accuracy of the mother’s account of traumatic events, and he accepted that adverse findings concerning that account would reduce its reliability. There was no expert evidence that return would disable the mother from caring for the child or create an intolerable situation. Previous mental-health difficulties had not prevented appropriate care.

4. Subjective anxieties can in principle establish article 13(b), irrespective of whether they are reasonable, where they would destabilise parenting to the point of intolerability. The assertion must nevertheless be examined critically. Objective grounds for anxiety and measures capable of dispelling or mitigating it remain relevant. The mother’s evidence did not meet that standard.

5. The possibility of arrest or prosecution for child abduction did not itself establish grave risk. Such a consequence will generally be insufficient, particularly where the home court has assessed the other parent as capable of caring for the child.

6. Any residual risks were adequately addressed by the father’s undertakings, his commitment to repeat them before the Australian court, the ongoing Australian proceedings, the child’s separate representation and the mother’s access to courts, medical services and domestic-abuse organisations. Effectiveness, rather than direct enforceability alone, governed the weight placed on undertakings.

7. The mother’s appeal under the 1996 Hague Convention was dismissed. The Australian orders arose from an urgent child-abduction case and therefore fell outside article 23(2)(c). They followed a considered welfare assessment and came nowhere near the rigorous public-policy exception in article 23(2)(d). The child was ordered to return by direct flight to Australia, subject to the accepted undertakings.

• High Court (Family Division): Ordered the child’s summary return to Australia under the 1980 Hague Convention and dismissed the mother’s appeal against registration and enforcement of the Australian orders under the 1996 Hague Convention.
• District Judge: On 3 January 2019, registered the Australian return orders and gave permission to enforce them. No citation is stated in the judgment.
• Australian Family Court: Made orders on 7, 9 and 22 November 2018 following the child’s removal, including orders requiring her return to Australia. No citations are stated in the judgment.