Supreme Court recognises “defence” to child abduction
The Supreme Court has unanimously upheld the appeal of a mother who brought her two-year-old child from Australia to the UK against the father’s wishes.
In the matter of S (a Child) [2012] UKSC 10 concerned the correct interpretation of Art 13(b) of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which provides a form of “defence” against child abduction.
Under Art 13(b), the court has discretion not to order the return of the child if there is a “grave risk” that the child would be exposed to physical or psychological harm or be placed in some other “intolerable situation”.
The father was a former heroin addict, and relapsed into drug use and alcohol abuse after his import business collapsed with large debts. The mother alleged domestic violence, and had obtained the Australian version of a non-molestation order against him. The father made counter-allegations of violence. The mother had suffered from anxiety and depression for many years, and was on medication and undergoing therapy.
The mother, who has dual citizenship, moved to the UK with the child. When the father issued an application for return, she cited the behaviour of the father and the likely effect on her mental health if she were forced to return in support of an Art 13(b) “defence”.
The justices overturned the Court of Appeal order that she return, and reaffirmed the interpretation the Supreme Court gave Art 13(b) last year (In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27).
Delivering judgment, Lord Wilson said: “The Court of Appeal failed to appreciate that the mother’s fears about the father’s likely conduct rested on much more than disputed allegations. Equally, it paid scant regard to the unusually powerful nature of the medical evidence about the mother, in particular of her receipt of regular psychotherapy while in Australia.”
