CT (A Child) (Abduction: Art 13b: Mental Health), Re

In an application for summary return under the 1980 Hague Convention, the Article 13(b) defence requires a concrete assessment of the situation likely to arise on return. The court must consider the nature and likelihood of the risk, and its consequences for the particular child. A parent’s mental-health deterioration may found a grave risk where it is likely to impair the parent’s emotional availability and ability to care for the child. The court must assess the cumulative effect of relevant circumstances and consider available protective measures. Protective measures will not suffice where the evidence establishes that they cannot prevent the relevant deterioration. The fact that adequate medical and social services are available in the requesting State does not answer a risk arising from the parent’s inability, because of mental illness, to engage with those services.

The father applied for the summary return of his two-year-old son to Australia under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention. It was common ground that the child had been habitually resident in Australia and had been wrongfully removed by the mother.

The mother relied on Article 13(b), alleging that her physical and mental health, viewed in the context of domestic-abuse allegations and the prospect of return, created a grave risk that the child would suffer psychological harm or be placed in an intolerable situation. The central issue was whether the proposed protective measures could sufficiently ameliorate that risk.

1. Application dismissed. The court declined to order the child’s summary return to Australia.
2. Article 13(b) required attention to the return to Australia, rather than the enforced removal from England. The court assessed the nature of the risk, the likelihood of its materialising, and the consequences for the child. It considered the cumulative effect of the mother’s allegations and applied the principle that intolerability depends on what the particular child, in the particular circumstances, should be expected to tolerate.
3. The domestic-abuse allegations, taken at their highest, would not alone establish an Article 13(b) defence because the risk arising from them could be addressed by the father’s proposed undertakings. They nevertheless provided significant context for the mother’s fears and anxieties about returning to Australia.
4. The evidence established a close relationship between the mother’s mental and physical health. Depression, anxiety and dissociation impaired her ability to eat regularly, monitor glucose, administer insulin and respond to warning signs. The resulting deterioration in her health affected her emotional availability and ability to parent the child.
5. The court accepted the psychiatrist’s evidence that return would create a significant risk of significant deterioration in the mother’s mental health, including increased dissociation and impaired parenting. In assessing the risk, the court considered that the child had spent his life with the mother, who was his primary carer, and that separation or reduced emotional availability would cause significant distress.
6. Medical care, benefits, accommodation, financial support and other protective measures would be available in Australia. However, the risk arose principally from the mother’s depression and anxiety and her consequent inability to manage her treatment. The proposed measures would therefore be unlikely to prevent further deterioration. The risk could not be sufficiently ameliorated, and amounted to a grave risk of psychological harm or an intolerable situation under Article 13(b).