S v C [2011] EWCA Civ 1385 (02 December 2011)

S v C [2011] EWCA Civ 1385 (02 December 2011)

The Court of Appeal held that the judge below misapplied the law by overemphasizing the mother's subjective perception of risk and psychological harm, failed to properly assess the sufficiency and enforceability of protective measures and undertakings, and wrongly elevated the Article 13(b) defence based on anticipated relocation proceedings. The correct approach required objective evaluation of risk in light of available protections. The appeal was allowed and a return order was made.

Citation
[2011] EWCA Civ 1385
Parties
Appellant: S; Respondent: C
Jurisdiction
England and Wales
Judgment Date
02 December 2011
Procedural Posture
Appeal / Judgment
Outcome
appeal allowed
Legal Topics
Hague Convention, Article 13(b) Exception, Protective Measures, Psychological Harm, Child Welfare
Family Law International Child Abduction Hague Convention Article 13(b) Exception Protective Measures Psychological Harm Child Welfare

Case Brief

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Parties

S

Appellant

C

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the Article 13(b) exception under the Hague Convention applies to prevent the return of the child to Australia
  2. 2 Whether protective measures and undertakings offered by the father are sufficient to mitigate risk to the mother and child
  3. 3 Whether the mother's subjective perception of risk and psychological harm can justify refusal of a return order

Ratio Decidendi

The Court of Appeal held that the judge below misapplied the law by overemphasizing the mother's subjective perception of risk and psychological harm, failed to properly assess the sufficiency and enforceability of protective measures and undertakings, and wrongly elevated the Article 13(b) defence based on anticipated relocation proceedings. The correct approach required objective evaluation of risk in light of available protections. The appeal was allowed and a return order was made.

Court Disposition

appeal allowed

Orders

  • Return order made for the child to Australia
  • Incidental issues regarding implementation of return order to be agreed by counsel