S v C

S v C

The judge below misapplied the Supreme Court's guidance in Re E by overvaluing the respondent's subjective perception of risk and failing to properly assess the sufficiency and enforceability of protective measures in Australia; the correct application of the Hague Convention required a return order.

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, Child Return Order, Article 13(b) Exception, Protective Measures, Psychological Harm
Family Law International Child Abduction Hague Convention Child Return Order Article 13(b) Exception Protective Measures Psychological Harm

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Parties

S

Appellant

C

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether Article 13(b) of the Hague Convention is satisfied to refuse a return order
  2. 2 Whether protective measures in Australia are sufficient to mitigate risk to mother and child
  3. 3 Whether subjective perception of risk by respondent can justify refusal of return order

Ratio Decidendi

The judge below misapplied the Supreme Court's guidance in Re E by overvaluing the respondent's subjective perception of risk and failing to properly assess the sufficiency and enforceability of protective measures in Australia; the correct application of the Hague Convention required a return order.

Court Disposition

appeal allowed

Orders

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