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Case Name
B v A [2020] EWHC 3138
INCADAT reference
HC/E/UKe 1741
Court
UNITED KINGDOM - ENGLAND AND WALES
High Court of Justice, Family Division
First Instance
Mr Teertha Gupta QC
States involved
AUSTRALIA
UNITED KINGDOM - ENGLAND AND WALES
Decision
14 December 2020
Final
Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Aims of the Convention - Preamble, Arts 1 and 2
Return ordered
Guide to Good Practice on Article 13(1)(b) of the 1980 Convention
In re E (Children: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144; Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 FLR 442; KS v RS [2009] 2 FLR 1231; Re B A Child Abduction Article 13(B) [2020] EWCA Civ 1057; Re M [2007] UKHL 55 and of course M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26; Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716; in re R (A Minor: Abduction) [1992] 1 FLR 105; Re LC [2014] UKSC 1 [2014] AC 1038; Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716; Re M (A Minor)(Child Abduction) [1994] 1 FLR 390; In Re D (a child) (abduction: rights of custody) [2006] UKHL 51, [2007] 1 AC 619, [2007] 1 All ER 783, [2007] 1 FLR 961
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SYNOPSIS
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One child wrongfully removed at age 8 – National of Australia and the UK – Unmarried parents – Father national of Australia and the UK – Mother national of Australia and the UK – Joint custody and pending relocation application – Child lived in Australia until 2020 – Return ordered – Main issues: Article 13(1)(b) not made out. The child objected to returning but the Judge declined to exercise his discretion to refuse to return the child.
SUMMARY
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Facts
The mother and father were both dual UK-Australian nationals. The mother moved to Australia in 2002. The parents began a relationship in 2006 and had a child in May 2012.
They separated in 2014 and a two-year litigation began which culminated in an order that the child should live with the mother but spend extensive time with the father. The order also included provisions regarding international travel.
In 2018 the mother remarried. Her new husband lived in the United Kingdom and they had been in a long-distance relationship since 2016.
In 2019 the mother applied to the Australian court for a relocation order to move to the UK but a long backlog meant there would be a long delay before she received a decision.
In July 2020 the mother took the child to the UK without the knowledge or consent of the father. This was in breach of the Australian order and a wrongful removal within the meaning of the 1980 Hague Abduction Convention.
The father filed an application under the Convention for the return of the child.
The mother argued that the child objected to returning and that Article 13(1)(b) applied due to the child’s anxiety, her own mental health and the domestic abuse she suffered from the father.
Ruling
Return ordered. Article 13(1)(b) not made out. The child objected to returning but the Judge declined to exercise his discretion to refuse to return the child.
Grounds
Grave Risk - Art. 13(1)(b)
Taking into account all the evidence, the high threshold of the Article 13(1)(b) exception was not met. The mother’s claims did not fully align with the welfare assessment for the Australian order in 2016 and her medical records showed her mental health had improved with medication. There was no evidence of severe anxiety that was intolerable for the child.
The judgment referred to the Guide to Good Practice on Article 13(1)(b) of the 1980 Convention.
Objections of the Child to a Return - Art. 13(2)
The Judge said it was questionable as to whether the child objected to return to Australia as the country of his habitual residence or rather to the ‘particular circumstances in that country’. However, he held that the two had conflated in the child’s mind and accepted that the child objected to returning.
The Judge then went on to consider whether, looking at the case holistically, he should exercise his discretion to refuse a return. He held that this was a pre-planned move by the mother and the child’s views were influenced by her as prior to leaving Australia he had a good relationship with his father and step-brothers. The Australian court was the proper place to have a hearing about the child’s welfare and the mother should not profit from her wrongful actions unless the child would truly benefit from staying in the UK.
Therefore it was in the child’s best interests to return to Australia so that a decision could be made about his relocation and the Judge did not exercise his discretion to refuse a return order.
Aims of the Convention - Preamble, Arts 1 and 2
The Judge noted that the nature of the Convention means his role was limited and that it would be entirely wrong to compare the efficacy of the legal systems of two signatory countries. A Judge’s remit in this instance was to ensuring that there are protective measures in place prior to an interim hearing and not to analysing when a final hearing will take place.