A and R (1980 Hague Convention: Return to Australia), Re [2024] EWHC 2190 (Fam)

The application in this case was made by the father who sought the summary return of his two children to Australia under the1980 Hague Convention on The Civil Aspects of International Child Abduction ("the 1980 Hague Convention") as incorporated by Schedule 1 of the Child Abduction and Custody Act 1985. The mother defended the application, arguing that the children were habitually resident in the UK, and that relocating to Australia would expose the children to a grave risk of physical or psychological harm. The judge ordered the return of the children to Australia as requested by the father. 

Background

The case concerned the application by the father to return his two children, A aged 8 and R aged 4, to Australia where they had been born and lived for most of their lives.

The father, aged 59, was born in Australia and is an Australian citizen. He is a farm manager, running two farms approximately 5 hours apart in south-western Australia and also working annually for 40-50 days at an international event in England. He has two children from a previous marriage who live in Australia and with whom he has a close relationship.

The mother is 40, born in England but with Australian citizenship. She had also worked at the same international event in England (which is where the parties met); on the family farms and at various other jobs in Australia and had recently qualified as a primary school teacher.

The parties met approximately 20 years ago. The mother moved to Australia approximately 14 years ago and lived with the father. They split briefly in 2015, but then reunited and became engaged in 2016 and married in 2017. The children have dual British and Australian citizenship. Their home in Australia was a remote farm in New South Wales.

On 19 April 2023, the mother and children travelled to England for an ‘extended stay’ so that the parents could work at the international event, and so that the mother could attend in person (since the eldest child would be starting school in early 2024 and they would not be able to travel so freely).  The father joined them in England at the beginning of June 2023, and returned to Australia at the end of July when the event ended. The mother remained in England with the children, but the parties were in dialogue about when they would travel home, which was anticipated to be sometime between September and November 2023. There were emails discussing the potential dates of return; discussing where the mother and children would live; and schools for the children. There was an email from the mother reassuring the father that he should remain part of the children’s lives, and a response from him saying that he recognised her wish to remain in England and would move after 2 years if they had established a happy, productive relationship. Correspondence by email and WhatsApp was affectionate and friendly.

It was agreed between the parties that their relationship had come to an end around the end of September 2023, and over the next two months they attempted both formally and informally to make arrangements for the children’s futures. However, no agreement was reached. In early November 2023, the mother was still confirming that the children would be returning to Australia, and the father said that she also confirmed this in a phone call on 15 November. However, on 18 November, she told the father that they would not be returning to Australia and that the children’s home and future lay in England. It was accepted that the date of retention was in November 2023.

The father submitted an application under the Hague Convention on 18 December 2023. Unfortunately, it was not submitted to ICACU until 1 July 2024 and so the hearing was not listed until August 2024. In the meantime, the father travelled to the UK twice to see the children and kept in regular contact via videolink.

On 17 July 2024, Poole J granted permission to the mother to instruct a consultant psychiatrist to undertake an assessment of her as she had been receiving psychotherapy since November 2023. The therapist described the mother as suffering from PTSD, having suffered years of emotional and physical abuse, coercive control and sexual and financial abuse. The consultant psychiatrist questioned this diagnosis. The mother also described the social isolation of her life in Australia.

Habitual residence

The first issue to be considered by the court was that of habitual residence. Article 3 of the Hague Convention states that:

“The removal or the retention of a child is to be considered wrongful where –

• It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
• At the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”

Article 12 goes on to say:

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.”

The father asked the court to take various points into account and to find that the children were not habitually resident in England. He pointed to the following:

• The children were born in Australia;
• Their paternal roots are in Australia and they have an extensive network of friends and family there;
• They have a half brother and half sister in Australia to whom they are close;
• They have had many of their primary experiences in Australia;
• The visit to England was only ever agreed to be for an ‘extended holiday’ and the mother had been intending to return to Australia with the children;
• Insofar as the children had taken part in events such as pre-school and swimming lessons in England, these were pragmatic childcare solutions and not a sign of integration.

The mother argued that the children had become habitually resident in England and made the following arguments;

• She is English, with significant and established links to this country and has spent a significant amount of time in England every year;
• The father spends a significant amount of time in England every year at the international event;
• The children have dual citizenship;
• The children spent 7 months in England prior to the agreed date of retention (November 2023) which is a significant proportion of their lives (particularly the youngest child);
• The parents relationship was deteriorating before they left Australia in April 2023 and so their ties with that country were lessening;
• The children have a good relationship with their maternal grandmother;
• Between April and December 2023, the eldest child was in pre-school in England for 2 days per week and from September 2023 the youngest child also attended nursery in England;
• Both children attended weekly swimming lessons at a local pool from April 2023;
• The younger child attended playgroup;
• Both children are registered with a GP in England;
• Both children have made friends.

The mother also argued that the family support in England was closer than in Australia both physically and psychologically.

The question of habitual residence is essentially a factual one. In this case, the judge found that the children were not habitually resident in England although they had, naturally, built up a routine and friendships here. He concluded that the mother had, until 18 November 2023, been intending to return to Australia and the parties had been having constructive discussions about this. The mother may have harboured hope to remain in England, but the children were essentially on an extended family holiday and had not integrated so fully into English life as to change their habitual residence.

On this basis, the judge found that the father had made out his case under Article 3 and so return would need to be ordered unless the mother could demonstrate that one of the exceptions under Article 13(b) was made out.

Grave risk of physical/psychological harm

Article 13(b) of the Hague convention provides that the court is not bound to order a return of the child if the person who opposes the return establishes 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.

The authorities establish that Article 13(b) is of restricted application. The focus in cases where it is alleged must be on the child and the risk of harm to the child, and the burden of proof is with the person opposing the return who must establish it on the ordinary balance of probabilities. The risk must be ‘grave’ (which can be established by the separation of the child from the abducting parent) and must be a future risk based on what will happen on the return. The risk can be mitigated by protective measures being put into place to ensure that the child will not be called upon to face an intolerable situation.

The mother argued her case on this point in two ways:

1. She said that she had been the victim of domestic abuse by the father, and so there was a grave risk that a return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable position;
2. She said that returning to Australia would expose the children to a grave risk of psychological harm if they were returned without her – and if they were returned with her then there was a grave risk that her mental health would deteriorate to the point that they were exposed to psychological harm or otherwise placed in an intolerable position.

The mother argued that she had been a victim of domestic abuse for an extended period of time, including physical, psychological, emotional, financial and sexual abuse, and controlling and coercive behaviour. She made allegations of gaslighting, and argued that the father’s behaviour had had a serious and debilitating effect on her mental health. All allegations of abuse were vehemently denied by the father.

It was accepted by the judge that domestic abuse is extremely harmful to children and that children can be victims of domestic abuse where they see or hear abuse involving family members. However, in this case, the evidence did not support the allegations being made. There was no contemporaneous evidence of domestic abuse, no police call outs, no social services records and no mental health records to confirm the mother’s account. The father provided evidence from friends and employers who gave a very different view of the father than the mother did. The judge found that “the evidence of domestic abuse is largely founded on assertion by the mother” and that the report from the mother’s therapist was not of assistance (therapy only having been started in November 2023 and with litigation in prospect). He held that the mother’s allegations of the father’s abuse were not entirely consistent with the tone and content of the email exchanges between the parties in the summer of 2023. The mother’s statements were felt to be questionable.

In terms of the adverse effects on the mother’s mental health if a return were ordered, the mother relied on the report from the consultant psychiatrist. That report suggested that the mother was not suffering from PTSD as her therapist stated, but instead that she had developed an adjustment disorder – “the psychological symptoms which arise out of a marked reaction to a life event which is perceived as unpleasant”. The psychiatrist confirmed that if she remained in England then her symptoms were likely to resolve quickly. If the court were to direct a return to Australia, then there would be a deterioration in her mental health but this could probably be managed with antidepressants and by a general practitioner. The situation would have to significantly deteriorate before she required more intensive support.

The allegations of domestic abuse were not accepted by the judge, but he did recognise that if they were in fact true, then there was a grave risk that the children would be placed in an intolerable situation. He went onto examine how could they be protected against this.

Protective measures

The parties had agreed a number of protective measures which would help to mitigate any grave risk of harm to the children. This included (amongst other things) undertakings from the father not to institute any civil or criminal proceedings in relation to the removal or retention of the children away from Australia; not to remove the children from the mother’s care if they returned to Australia; and not to attend the property where the mother would live with the children. It also included more practical support such as funding for rent for 6 months; purchase of a plane ticket for the younger child (who was then over 2 and required a ticket for the journey to Australia); ongoing financial support including the provision of a car; and funding for therapy. The father indicated that he would not need time to raise the money and would make it available within a week. In addition, the offer was unconditional and even if the mother were immediately to find a job and start working, or if she were to be awarded a lower level of maintenance on an ongoing basis than what was being offered, he would not require the return of any of the money. The judge was satisfied that these measures would be sufficient and could be enforced if necessary.

In conclusion, the judge held that the return of the children would not create a grave risk to the children of exposure to physical or psychological harm. It would not place them in an intolerable situation. The return was therefore ordered in accordance with Article 3, with the hope that this could take place within a month.