B v A

B v A

The Article 13(b) grave risk/intolerability defence was not made out on the evidence; the mother's and child's anxieties did not reach the high threshold required. Although the child's objections gateway was crossed, his views were found to be significantly influenced by the mother and not sufficiently independent or weighty to justify refusing return. The policy of the Convention, comity, and the child's best interests required return to Australia for welfare decisions to be made there.

Parties
Applicant: B; Respondent: A
Jurisdiction
England and Wales
Judgment Date
14 December 2020
Procedural Posture
Child Abduction Summary Return Application Under the 1980 Hague Convention / Judgment After Contested Hearing
Outcome
Application granted; order for summary return of the child to Australia.
Legal Topics
Hague Convention 1980, Article 13(b) Grave Risk Defence, Child's Objections, Habitual Residence, Summary Return, Protective Measures, Comity Between Contracting States
Family Law International Child Abduction Hague Convention 1980 Article 13(b) Grave Risk Defence Child's Objections Habitual Residence Summary Return Protective Measures +1 more

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Parties

B

Applicant

A

Respondent

Procedural Posture

Child Abduction Summary Return Application Under the 1980 Hague Convention / Judgment After Contested Hearing

Legal Issues

  1. 1 Whether the removal of the child from Australia to England was wrongful under the Hague Convention
  2. 2 Whether the Article 13(b) grave risk or intolerability defence is made out
  3. 3 Whether the child's objections defence is made out and, if so, whether discretion should be exercised to refuse return

Ratio Decidendi

The Article 13(b) grave risk/intolerability defence was not made out on the evidence; the mother's and child's anxieties did not reach the high threshold required. Although the child's objections gateway was crossed, his views were found to be significantly influenced by the mother and not sufficiently independent or weighty to justify refusing return. The policy of the Convention, comity, and the child's best interests required return to Australia for welfare decisions to be made there.

Court Disposition

Application granted; order for summary return of the child to Australia.

Orders

  • The child R is to be returned forthwith to Australia, ideally in the mother's care, or in the father's care if the mother refuses.
  • No interference with the existing Australian court order of 8 March 2016.