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The mother was born in Bosnia and arrived in England in 1995 as a 14-year-old asylum seeker. At the time of the hearing she was both a British and a Bosnian national. The father, a Bosnian national, had always lived and worked in Bosnia.

The mother and father met in 2009 and married in Bosnia in 2010. They lived together on and off during the marriage. They had a child, born in England in February 2017, who was three years old at the time of the hearing. The family moved between Bosnia and England.

The mother had longstanding mental health problems. She alleged violence on the part of the father, reporting incidents to the police and seeking assistance from the British Embassy in Sarajevo. In 2019 the father was arrested after beating the mother and the mother and child placed in a women’s shelter. 

In February 2019, without informing the father, the mother returned to England with the child to live in London, where she has had a tenancy since 2010. The child’s maternal grandmother lives nearby.

The father lodged a criminal complaint against the mother for child abduction. He also sought unsuccessfully to appeal the restraining order against him.

In June 2019 the father issued an application under the 1980 Hague Convention for the return of the child to Bosnia. The mother opposed the application arguing that the child was not habitually resident in Bosnia before his removal, that the father had consented to the removal and that there was a grave risk of harm to the child should he be returned to Bosnia. 

At first instance the Judge ordered the return of the child to Bosnia. The mother appealed this decision. Permission to appeal was initially refused but later granted due to the mother arguing that there was a fundamental change of circumstances as the mother’s mental health had deteriorated, she would now not return to Bosnia, and the father had breached his undertakings. 

Appeal allowed. The Court set aside the order for return and dismissed the father’s application under the 1980 Hague Convention.

Grave Risk - Art. 13(1)(b)

The Court allowed the appeal as Article 13(1)(b) was clearly established. 

The first instance Judge had not taken the correct approach to the issue of the mother’s mental health. The Supreme Court in Re E held that Article 13(1)(b) is “looking to the future”. The Judge considered that by the time of the hearing the mother’s mental health was stable, but the question that should have been asked was not whether the mother was stable at that time, but what would happen if she went with the child to Bosnia.  If the judge had looked at the mother’s mental health from this perspective she would, inevitably, have concluded that returning to Bosnia would be likely to result in the emotional dysregulation of the mother and the consequent effect on her ability to care for the child.

The Court held that there would be a grave risk of the child being placed in an intolerable situation based on the prospective significant deterioration in the mother’s mental health if she were to return to Bosnia. 

Non-Convention Issues

The first instance Judge had erred in her determination of whether there had been a fundamental change of circumstances in order to set aside the initial return order. The fact that the child would be returning to Bosnia without the mother was a fundamental change of circumstances. The father had also breached his undertakings.