B (A Child) (Abduction: Article 13(b): Mental Health), Re

In a Hague Convention return case based on a taking parent’s mental health, Article 13(b) requires a forward-looking assessment of the nature and likelihood of the asserted deterioration and of its likely consequences for the child. A significant risk that mental health will deteriorate is not the same as a risk that the deterioration will be significant. Evidence that depression can affect parental responsiveness or a child’s emotional wellbeing will not, without more, establish a grave risk of psychological harm or an intolerable situation. The court must consider protective measures, but the defence fails where the evidence does not support the asserted level of impairment or impact on the child.

The father applied for the summary return to Australia of A, who had been wrongfully removed to England by the mother when A was four months old. The mother relied on Article 13(b) of the 1980 Hague Child Abduction Convention. She had a long history of depression and anxiety, and contended that separation from her extensive family support in England would seriously worsen her mental health and impair her care of A.

The Deputy High Court judge dismissed the father’s application. She found a grave risk that the mother would be unable safely to meet A’s needs, or would suffer a mental-health crisis, and held that the proposed protective measures were inadequate. The father appealed, principally arguing that the psychiatric evidence did not support those conclusions. The central issue was whether the evidence established the high Article 13(b) threshold.

Appeal allowed. The court held unanimously that the Article 13(b) defence had not been established and made a summary return order to Australia.

1. Article 13(b) is a restricted but not narrowly construed exception. The court must assess the child’s prospective situation on return, including available protective measures. The risk must be grave, and an intolerable situation is one which the particular child should not be expected to tolerate. A parent’s anxieties may found the defence even if objectively unreasonable, but only if their effect on that parent’s mental health would make the child’s situation intolerable: In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 and In re S (A Child) (Abduction: Rights of Custody) [2012] 2 AC 257.

2. The required assessment has three connected elements: the nature of the risk, the likelihood of its materialising, and its consequences for the child. In a mental-health case this requires evidence of the likely extent of any deterioration in the parent’s condition and of the likely impact on parenting and the child.

3. The psychiatric evidence established a significant risk of deterioration or relapse in the mother’s mental health after return. It did not establish a risk of significant deterioration. Nor did it support findings that she would be unable to provide safe care, unable to meet A’s daily needs, or likely to experience a crisis. The expert’s evidence went no further than a possible effect on consistent emotional responsiveness, attachment and emotional wellbeing. That potential impact did not satisfy the high Article 13(b) threshold.

4. The first-instance conclusion was therefore not reasonably open on the evidence. No rehearing was required because the existing expert evidence and transcript provided a sufficient basis to determine the Convention application. Long-term welfare and any relocation issues were for the Australian court.

• Court of Appeal (Civil Division) Allowed the father’s appeal, rejected the Article 13(b) defence and made a summary return order: [2024] EWCA Civ 1595.
• High Court of Justice, Family Division On 1 September 2024, a Deputy High Court judge dismissed the father’s summary-return application on the basis that Article 13(b) had been established.