Re A (Article 13(b): Mental Ill-health)

Under Article 13(b) of the 1980 Hague Convention, the court must assess the concrete situation which would arise on an immediate return. The focus is the child, but the effect of return on an accompanying parent may establish grave risk where deterioration in that parent’s mental health is likely to impair parenting or place the child in an intolerable situation.

The court must consider allegations cumulatively, assess the nature and severity of the prospective risk, and examine whether protective measures are sufficiently specific, effective and accessible. General assurances and broadly identified services may be inadequate where the evidence shows serious, unstable mental illness and uncertainty about access to care. The jurisdiction requires a decision on the evidence at the hearing and is not a “wait and see” jurisdiction.

The father applied under the 1980 Hague Convention, as incorporated by Schedule 1 to the Child Abduction and Custody Act 1985, for the summary return of the parties’ three-year-old child from England to Australia.

The mother argued that the child was habitually resident in England and Wales. Alternatively, she relied on Article 13(b), alleging domestic abuse and contending that her serious mental ill-health would deteriorate on return, exposing the child to psychological harm or an intolerable situation. The court had to determine habitual residence, whether the Article 13(b) exception was established, and how its discretion should be exercised.

1. Habitual residence. The child remained habitually resident in Australia at the date of retention. Habitual residence is a child-focused question of fact. The court must evaluate all relevant circumstances, including the child’s integration into the social and family environment, stability of residence, parental intentions and the circumstances of the child’s primary carer. Nursery registration, medical registration and new friendships in England and Wales were pragmatic arrangements and did not outweigh the child’s deep integration and established family connections in Australia (paras [25]-[31]).
2. Article 13(b). The burden was on the mother and the standard was the balance of probabilities, subject to the summary nature of the process. The court did not conduct a fact-finding hearing on the domestic-abuse allegations. However, assuming them to be true, exposure to an abusive parental relationship would create a grave risk to the child’s psychological wellbeing. The proposed undertakings and available protective orders sufficiently reduced that risk (paras [81]-[82]).
3. The mental-health case succeeded. The court accepted that the mother was severely depressed, highly anxious and emotionally fragile, with untreated ADHD, medication concerns, limited support and substantial uncertainty about accommodation, finances and access to effective treatment in rural Australia. A return was likely to worsen her condition, impair her parenting, and potentially lead to hospitalisation or escalating hopelessness. This created a grave risk of psychological harm to the child or an intolerable situation (paras [84]-[98]).
4. Protective measures must provide concrete clarity and assurance. The father’s general proposals concerning Medicare, counselling and support were insufficiently focused on the mother’s actual needs, particularly because no effective professional network had been arranged in advance (paras [92]-[97]).
5. Once the Article 13(b) exception was established on the basis of grave risk, the discretion was exercised by refusing return. The court could not defer the decision to observe whether the mother’s condition improved. The father’s application was refused, although the judgment stressed the importance of urgently improving indirect contact and preserving the father’s role in the child’s life (paras [98]-[105]).