Supreme Court
Published March 21, 2012
In re S (A Child)
Before Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Mance, Lord Kerr of Tonaghmore and Lord Wilson
Judgment March 14, 2012
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An order should not be granted for a child to be returned with his mother to the state where the child was habitually resident if the court concluded that on return the mother would suffer such anxieties that the effect on her mental health would create an intolerable situation for the child. It did not matter whether the mother’s anxieties were reasonable or unreasonable.
The Supreme Court so held, allowing the mother’s appeal from a decision of the Court of Appeal (Lord Justice Thorpe, Lord Justice Longmore and Lord Justice McFarlane) ([2011] EWCA Civ 1385) ordering that the mother should forthwith return her son to Australia when allowing the father’s appeal from a decision of Mr Justice Charles ([2011] EWHC 2624 (Fam)) who refused the father’s application for the child’s return.
Mr James Turner, QC and Ms Geraldine More O’Ferrall for the mother; Mr Anthony Kirk, QC and Mr Nicholas Anderson for the father; Mr Henry Setright, QC and Mr Edward Devereaux for Reunite International Child Abduction Centre, intervening.
LORD WILSON, delivering the judgment of the court, said that the parents, who were not married, had lived in Australia with their son, W, who was born in November 2009.
On February 2, 2011, the mother removed W to England. In removing W from Australia, the state in which W was habitually resident immediately prior to his removal, the mother lacked both the father’s consent and the permission of an Australian court. In those circumstances W’s removal was in breach of rights of custody attributed to the father under Australian law and it was therefore wrongful for the purpose of article 3 of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on October 25, 1980.
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The only defence raised by the mother to the father’s application under the Convention for an order for W’s return forthwith to Australia was that provided for by article 13(b) of the Convention, namely that: “there is a grave risk that his ... return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
Nine months ago in In re E (Children) (Abduction: Custody Appeal) (The Times June 16, 2011; [2012] 1 AC 144), the Supreme Court had attempted to set out in clear terms the approach to a defence under article 13(b), and held that the terms of the article were plain, that they needed neither elaboration nor gloss, and that by themselves they demonstrated the restricted availability of the defence. Permission for bringing the present appeal had been granted largely out of concern that the Court of Appeal’s judgment represented not only a fresh gloss on the meaning of article 13(b) but one which happened to run directly counter to the Supreme Court’s analysis of its meaning in In re E.
The Court of Appeal had erroneously assumed that the mother’s allegations against the father were in effect entirely disputed and that, in the absence of oral evidence, an assessment of their truth had lain beyond the judge’s reach.
In fact however the careful study by the trial judge of the witness statements, and in particular of about 300 text messages and emails which were attached to the statements, revealed that a number of important allegations made by the mother against the father were admitted or at least, in the light of what had been said in the texts and emails, could not realistically be denied.
The Court of Appeal made an entirely inadequate address of the mother’s case and treated the foundation of her defence as being merely her subjective perception of risks which might lack any foundation in reality.
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Their Lordships wished to make clear the effect of what they said in In re E. The critical question was what would happen if the mother and child were 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. 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.
The Court of Appeal also failed to recognise that the judgment about the level of risk which was required to be made by article 13(b) was one which fell to be made by the judge and his judgment should not be overturned unless, whether by reference to the law or to the evidence, it had not been open to him to make it. The judge was right to give central consideration to the interim protective measures offered by the father. But his judgment was right that, in the light of the established history between the parents, they did not obviate the grave risk to W. It was open to him to make that judgment and it was not open to the Court of Appeal to substitute its contrary view. The fact that the judge had not received oral evidence did not deprive his judgment of its primacy in that sense.
Solicitors: Rosleys, Nottingham; Lyons Davidson, Bristol; Dawson Cornwell.