Removal outside jurisdiction - Return order - British mother returning from Australia to UK with child

Re S (a child) (international abduction: subjective fear of risk): SC (Justices of the Supreme Court Lords Phillips (president), Mance, Kerr, Wilson, Lady Hale): 14 March 2012

The appellant mother, who was British but had Australian citizenship, and the respondent father, an Australian, were unmarried. In 2008, the mother and father took up cohabitation.

The father informed the mother that he had been a heroin addict. In February 2009, the mother became pregnant. During the beginning of their relationship and the mother's pregnancy, the father's business collapsed, he accrued massive debts and contributed little to the household finances. Consequently, the burden of meeting household expenses fell largely on the mother. Both parties found themselves in debt.

The father's financial problems led to serious alcohol and drug relapses on his part. The extent of his relapses was in issue, but his emails to the mother impelled the court to a conclusion that his formal admission of a small number of relapses was far from frank. In November 2009, a child, W, was born. In January 2011, the relationship between the parents began to break down and a series of text messages and emails were exchanged between them. The mother found the father injecting himself. She called the police and told the father not to enter the flat again. The father admitted only that he had been drinking on that day, but in text messages that he sent the mother on the day in question he offered to attend meetings held by Alcoholics Anonymous and/or Narcotics Anonymous.

The police obtained, on the mother's behalf, an apprehended violence order, an order analogous to a non-molestation order. In February, the mother returned, with W, to the UK. The circumstances of W's removal meant that it had been in breach of article 3 of the Convention on the Civil Aspects of International Child Abduction (the Hague convention). Between February and June, a large number of text messages and emails were exchanged by the parents. The father issued an application in the High Court for an order for W's return to Australia pursuant to the Hague convention. The mother's defence rested upon article 13(b) of the Hague convention, namely that there was a grave risk that her return would expose W to physical or psychological harm, or would otherwise place W in an intolerable situation.

The mother submitted evidence from her general practitioner in Australia which concluded that, in the light of the mother's depression, which might recur if she were placed in a stressful situation, her health would suffer greatly if she was required to return to Australia. The mother had received extensive psychotherapy while in Australia which had continued, by telephone, after the mother's return to the UK. The psychologist reported, inter alia, that the mother had had an underlying and chronic anxiety condition, her fear of the father's mental instability added to the stress of isolation in Australia and might undermine the mother's capacity to hold herself together and that her likely clinical depression could diminish her secure attachment to W.

The psychologist concluded that if the mother were forced to return to Australia, her anxiety might become crippling. The judge adjourned the hearing to seek further, detailed, evidence: first, from the father regarding the practical and financial safeguards which would be available to the mother and W in the event of their return; and second, from a jointly instructed psychiatrist regarding the mother's mental health. The father put forward a raft of measures suggested to be protective of the mother and W in the event of their return, including undertakings as to financial support and contact.

The report prepared by the jointly instructed psychiatrist suggested that, while in Australia, the mother had suffered battered women's syndrome (a form of post-traumatic stress disorder (PTSD)) followed, after finding the father injecting himself, with an acute stress reaction. The psychiatrist reported that her then current psychiatric and psychological condition was stable and healthy and that she did not display features of depression or PTSD. Further, that the likely impact on her psychiatric and psychological health if returned to Australia would be significant and severe because contact with the source of her stress, namely the father, put her at risk of further acute stress and PTSD. Her history of anxiety and depression increased the likelihood of a recurrence of her anxiety and depression. The judge, in seeking to follow Re E (children) (wrongful removal: exceptions to return) ([2011] 4 All ER 517), dismissed the father's application for summary return of W ([2011] EWHC 2624 (Fam)). The judge found that a number of important ­allegations made by the mother against the father had been admitted or at least, in the light of the emails and text messages, could not realistically have been denied.

The judge began by assuming that the mother's allegations against the father were true. He then concluded that, on that assumption, and in the light of the fragility of the mother's psychological health, the protective measures offered by the father would not obviate the grave risk that, if returned, W would be placed in an intolerable situation. Consequently, he considered whether the mother's allegations were true. He concluded that, on the ­evidence, and as counsel for the father had been constrained to acknowledge, the mother had made out a good prima facie case that she was the ­victim of significant abuse at the hands of the father. The father appealed.

The Court of Appeal, in giving its judgment, did not make reference to: (i) the father's descent into alcohol and drug abuse; (ii) the absence of evidence that he had surmounted those problems; (iii) the likely effect on his ability to comply with court orders and the possible need for the mother to take enforcement proceedings; (iv) his contemplation of suicide; (v) his failure properly to maintain the family; (vi) the likely effect of his failure on the ability of the Australian courts to devise a secure financial foundation for the household of the mother, with child care responsibilities, in Australia; (vii) the many admissions made by the father in the text messages and emails; (viii) the judge's provisional finding that the mother had been the victim of significant domestic abuse; and (ix) the fact that, however effective the steps to be taken by the Australian courts to protect the mother, she and the father would probably need to have a degree of personal communication. The Court of Appeal allowed the father's appeal and ordered the mother, pursuant to article 12 of the Hague convention, to return to Australia with W. The mother appealed. The issue for determination was whether there had been an error in law on the part of the Court of Appeal. The appeal would be allowed.

The effect of Re E was that the critical question was 'what would happen if, with the mother, the child was returned?' If the court concluded that, on return, the mother would suffer such anxieties that their effect on her mental health would create a situation that was intolerable for the child, then the child should not be returned. It mattered not whether the mother's anxieties would be reasonable or unreasonable. Re E had made clear that the court recognised the possibility that a mother's merely subjective perception of risks could, as a matter of logic, found her defence. The extent to which there would, objectively, be good cause for the mother to be anxious on return would nevertheless be relevant to the court's assessment of the mother's mental state if the child was returned (see [31], [34] of the judgment).

In the instant case, the Court of Appeal had erred in its application of Re E. It had not adequately addressed the mother's case. Ins
tead, it had treated the foundation of her defence as being merely her subjective perception of risks which might have lacked any foundation in reality. It had failed to appreciate that the mother's fears rested on much more than disputed allegations. It had paid equally scant regard to the unusually powerful nature of the medical evidence about the mother. The fact that the mother had been in receipt of regular psychotherapy had conferred an especial authority on the report from the Australian psychotherapist, and to which the Court of Appeal had hardly given mention.

Overarchingly, it had failed to recognise that the judgement about the level of risk, which had been required by article 13(b) of the Hague convention, had been one which had fallen to be made by the High Court judge and that it should not have overturned his judgment unless, whether by reference to the law or to the evidence, it had not been open to him to make it. The judgment of the High Court judge had been one which had been open to him to have made and it had not been open to the Court of Appeal to substitute its contrary view (see [31]-[33], [35] of the judgment).

The appeal would be allowed and the order of the High Court would be restored (see [36] of the judgment).

Per curiam: At a general level, the approach commended in Re E should form part of the court's general process of reasoning in its appraisal of a defence under [article 13(b) of the Hague convention] and does not require formal identification as a preliminary point. Second, and more importantly, the guidance given in paragraph 36 of Re E relates to factual 'disputes' and to resolution of the 'disputed' issues (see [22] of the judgment). Decision of the Court of Appeal, Civil Division [2012] 1 FCR 172 reversed.

James Turner QC and Geraldine More O'Ferrall for the mother; Anthony Kirk QC and Nicholas Anderson for the father; Henry Setright QC and Edward Devereux (instructed by Dawson Cornwell) for Reunite International Child Abduction Centre as intervener.