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

Lord Justice Moylan:

The mother appeals from the order made on 7 September 2022 by Arbuthnot J under the 1980 Hague Child Abduction Convention (“the 1980 Convention”) by which she ordered the summary return of the parties’ child, S aged 6, to Australia. The judge decided that the mother had failed to establish the exception to a summary return order under article 13(b), which was the only exception under the 1980 Convention relied on by the mother.

The mother has another child, A, aged 9. Although he lived with the mother and the father after the mother moved to Australia in 2015, A was not included within the proceedings because the father has no rights of custody in respect of him and no separate application was made by the father. As explained further below, the mother decided that A should remain in England. The judge did not criticise this decision and clearly accepted that it was motivated by what the mother considered was in A’s best interests.

The mother has had longstanding, chronic mental health problems with acute, severe episodes as set out below. Expert psychiatric evidence was obtained for the purposes of the proceedings from a Consultant Psychiatrist, Dr Ratnam.

The mother relied on a number of matters in support of her case that article 13(b) was established. These included allegations of physical abuse in respect of her and of the children; that the father emotionally abused her by being coercive and controlling in their relationship; the impact of a return to Australia on her mental health; and the effect on S of his being separated from A.

The judge then decided, at [147], that the “protective factors which the father has offered satisfy the safeguards suggested by Dr Ratnam”. The “most important ones are the ones relating to the mother’s mental health”. After stating, at [148], that “there is a risk that the stress and anxiety will reduce the mother’s ability to respond to treatment and will worsen her mental health”, the judge concluded that: “the safeguards, in particular the professional support for her mental health which will be set up in advance and her continuing ability to access the right medication at the correct dose, will reduce the risk to the mother and S and ensure that the latter will not face a grave risk that he is exposed to psychological harm or placed in an intolerable situation on his return to Australia.” (emphasis added)

The mother’s case on appeal was, in summary, that the judge’s analysis in respect o