M v G (Hague Convention: Article 13 (b) defence) (Rev 1)

M v G (Hague Convention: Article 13 (b) defence) (Rev 1)

The mother failed to establish that return would expose the child to a grave risk of harm or intolerable situation; her mental health difficulties are chronic and pre-existing, not solely or mainly linked to return; she has previously managed her condition and accessed support in Australia; protective measures are sufficient to mitigate any risk; therefore, the Article 13(b) defence is not made out and the child must be returned.

Parties
Applicant: M; Respondent: G
Jurisdiction
England and Wales
Judgment Date
15 May 2020
Procedural Posture
Hague Convention Child Abduction Application / Judgment After Contested Hearing
Outcome
Application for return granted
Legal Topics
Hague Convention on the Civil Aspects of International Child Abduction, Article 13(b) Grave Risk Defence, Summary Return of Child, Protective Measures, Mental Health Impact on Primary Carer
Family Law International Law Hague Convention on the Civil Aspects of International Child Abduction Article 13(b) Grave Risk Defence Summary Return of Child Protective Measures Mental Health Impact on Primary Carer

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Parties

M

Applicant

G

Respondent

Procedural Posture

Hague Convention Child Abduction Application / Judgment After Contested Hearing

Legal Issues

  1. 1 Whether the mother's retention of the child in the UK was wrongful under Article 3 of the Hague Convention
  2. 2 Whether the Article 13(b) defence is established: would return expose the child to grave risk of harm or intolerable situation
  3. 3 Whether protective measures are sufficient to mitigate any risk

Ratio Decidendi

The mother failed to establish that return would expose the child to a grave risk of harm or intolerable situation; her mental health difficulties are chronic and pre-existing, not solely or mainly linked to return; she has previously managed her condition and accessed support in Australia; protective measures are sufficient to mitigate any risk; therefore, the Article 13(b) defence is not made out and the child must be returned.

Court Disposition

Application for return granted

Orders

  • The child X is to return to Australia on a date to be fixed, subject to submissions on timing and protective measures.
  • Protective measures to be in place prior to return, including accommodation, financial provision, and support for the mother and child.