This article explores some recent caselaw involving mental health issues being relied upon in the context of Article 13(b) of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (briefly referred to as the “1980 Hague Convention”).
Article 13(b) provides that a court is not bound to order the return of the child to the originating if it is established that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
However, Article 13(b) exception does not require that the child themselves must be the direct or primary victim of physical harm if there is sufficient evidence that, because of a risk of harm directed to a taking parent, there is a grave risk to the child.
In 2012, the Supreme Court Judgment in Re S (a Child) [2012] UKSC 10 said:
“The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned”. (§34, Lord Wilson)
In the following cases, it was alleged that psychological harm to a parent caused by a return to the requesting state, would, in turn create a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
In this case the applicant father sought the return of two children aged 5 and 3 to Australia.
The respondent mother opposed the application, relying on the following arguments:
Or alternatively
The mother travelled to England with the children in April 2023 for an agreed extended trip. The father joined them between June and July of the same year. In September, the mother visited her GP in England and reported feelings of not wanting to return to Australia. The mother by was prescribed anti-depressant medication. It was during this time that the parties’ relationship ended, and they entered discussions about the children’s future. On 3 November, the mother confirmed by email that she would return to Australia. However, on 18 November, the mother emailed the father advising him she would not return to Australia with the children. The agreed date of retention was therefore 19 November 2023.
At the first hearing, the mother was given permission to instruct a consultant psychiatrist to undertake an assessment of her.
Dr McClintock’s report concluded that the mother had “an “adjustment disorder”, sometimes known as reactive depression (“the psychological symptoms which arise out of a marked reaction to a life event which is perceived as unpleasant” – i.e., the prospect of a return to Australia)”
The final hearing was heard by Mr Justice Cobb.
On the issue of habitual residence, Cobb J concluded that although the children had spent time in England with their maternal family, the evidence did not support a conclusion that their lives had acquired such a degree of stability, or had become so integrated into English life, as to change their habitual residence.
The court then considered Article 13(b). Cobb J concluded there was little independent evidence in relation to the mother’s case of domestic abuse and if anything, there was significant email correspondence of a different tone. In any event, the parties had agreed a suite of possible protective measures should they be relevant. Cobb J was satisfied that the undertakings offered by the father would be capable of ready enforcement in Australia and offer “immediate protection from the father’s alleged conduct”.
With reference to the mother’s fears of a deterioration of her mental health in the event of a return, and the court was satisfied that this could be managed sufficiently though access to medical and therapeutic services in Australia.
Cobb J concluded that this was not a case (such as that contemplated by Lord Wilson in Re S see above) where the evidence points to the mother suffering such anxieties that their effect on her mental health will create a situation that is intolerable for the children.
The court ordered the summary return of the children to Australia.
This was another Australian case, concerning a 1-year-old child, “A” who had been wrongfully removed from Australia by her mother when she was 4 months old.
During Hague proceedings brought by the applicant father seeking A’s return, the mother was been given permission to instruct a Consultant Forensic Psychiatrist to prepare a report in relation to her mental health.
Dr Ratnam stated that the mother fulfilled the criteria for a diagnosis of recurrent depression having experienced episodes of depression over many years, with recurrent episodes since 2013. Dr Ratnam also considered that the mother fulfilled the criteria for a diagnosis of generalised anxiety. Furthermore, the mother fulfilled the criteria for a diagnosis of post-traumatic stress disorder if the “trauma in her relationship with” the father had occurred as she recounted.
Dr Ratnam said that the deterioration in the mother’s mental health “can” or “could” impact on A’s own emotional wellbeing.
At first instance, the trial judge dismissed the father’s application having concluded that the mother had established that there was a grave risk that returning A to Australia would expose A to psychological harm or otherwise place her in an intolerable situation (Article 13(b)). This was based, in summary, on the mother’s mental health and the judge’s assessment of the risk, on a return to Australia, of (a) “the mother not coping with daily life to the point that she is unable to provide safe care” because there was “a serious prospect” of her “being unable to meet A’s daily needs whether physical, emotional or social”; and (b) of the consequences “of the mother’s mental health deteriorating to the point that she experiences a crisis”.
The father appealed to the Court of Appeal. The father’s case was that the judge was wrong to find that Article 13(b) was established because, in particular, the evidence did not support her conclusions as to the likely nature or extent of the deterioration in the mother’s mental health on returning to Australia and its likely impact on A.
The Court of Appeal considered that the trial judge’s conclusion that Article 13(b) was established in this case was wrong in that it was not one reasonably open to her. The trial judge’s analysis was materially flawed and her ultimate conclusion was wrong.
Dr Ratnam’s evidence was the key evidence in determining whether Article 13(b) is established in this case. Dr Ratnam’s evidence did not support the judge’s specific conclusions of “the mother not coping with daily life” or of “deteriorating to the point that she experiences a crisis”. The judge had built on the evidence of the expert and not in a way which was justified.
Dr Ratnam did not suggest anywhere in her evidence that there was a risk of the mother’s mental health deteriorating to the extent of her being “unable to provide safe care” or being “unable to meet A’s daily needs”.
Dr Ratnam said that there was “a risk of [the mother] becoming emotional” and used the words “can” and “could” in respect of attachment with A and A’s emotional wellbeing. These statements were some distance from the judge’s conclusions.
In summary, the evidence undoubtedly established that “there is a significant risk of deterioration or relapse” in the mother’s mental health but it did not establish that the nature or extent of any such deterioration or relapse would be likely to expose A to a grave risk of psychological harm or otherwise place her in an intolerable situation. The nature of the risk to A, as expressed in Dr Ratnam’s evidence, is that depression can impact on the ability of a parent to respond “consistently” and can affect attachment with A which could impact on A’s own emotional wellbeing. In these terms, the nature and extent of the potential impact on A were not such as to bring this case within Article 13(b).
The Court of Appeal did not consider that a rehearing was required and proceeded to make a summary return order.
These cases highlight that Article 13(b) is, by its very terms, of restricted application and the defence has a very high threshold. Even in cases where expert Consultant Forensic Psychiatrists have confirmed the likelihood of deterioration in mental health in the abducting parent following a return to the originating State, the next step in proving that such deterioration would cause an intolerable situation for the child has not been successfully made out.
