M (A Child) (1980 Hague Convention : Abduction: Article 13(b): Mental Health), Re

In an application under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, an Article 13(b) defence requires proof of a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation. The assessment is future-looking and fact-specific. The court must consider the totality of the evidence, including the child’s circumstances, the parent’s mental health, and the availability and efficacy of protective measures. A parent’s subjective anxiety may be relevant, but deterioration in that parent’s mental health does not automatically establish grave risk or an intolerable situation for the child. Protective measures must be assessed collectively, including their practical and financial support and the enforceability of any undertakings.

The father applied for the summary return of his five-year-old son to Australia after the mother took the child to England for an agreed visit and retained him beyond the expected return date. The mother opposed return under Article 13(b), relying on allegations of coercive and controlling behaviour, the likely deterioration of her mental health, social isolation, and the disruption to the child, who had additional needs.

The court considered statements from both parents and a jointly instructed consultant psychiatrist. The central issue was whether the mother had established a grave risk of harm or an intolerable situation for the child, having regard to the proposed protective measures and the mother’s stated intention not to return with him.

1. Return ordered. The mother did not establish the Article 13(b) defence. The child was ordered to return to Australia by 23.59 on 10 January 2024.
2. The proceedings were summary in nature and did not permit a fact-finding exercise concerning the disputed allegations. Nevertheless, the allegations of coercive and controlling behaviour, their psychological impact, the mother’s predisposition to social isolation, depression and anxiety, and the child’s developmental delay were relevant matters to be weighed.
3. The assessment under Article 13(b) was directed to the future circumstances of the child on return. The mother’s likely anxiety and deterioration in mental health were accepted, and her subjective anxieties were relevant. They did not, however, establish grave risk or an intolerable situation for the child on the evidence.
4. The court assessed the protective measures collectively. Financial assistance, measures regulating the parties’ relationship, and an offer to fund a family member or friend to accompany the mother provided sufficient safeguards and support. The absence of an assurance concerning Australian family proceedings did not demonstrate malign intent or defeat the protective arrangements.
5. The factual similarities with Re S (A Child) (Abduction: Article 13(b) Mental Health) did not require the same outcome. That case involved materially more severe deterioration, a serious compromise of the mother’s capacity to care for the child, and separation from a sibling. M v G illustrated that a return may be ordered despite serious psychological and mental-health concerns, but each case remained fact-specific.
6. The timing of return was fixed to allow the child to complete the current school term, adjust to the move and settle before starting the new school term in Australia. The delay also allowed the mother time to prepare and obtain assistance.