“7. The mother has a long history of mental ill health. The father thought it was of about five years’ duration but in fact it goes back much further than that with GP records documenting symptoms of depression and anxiety since about age 15 years. The mother’s own mother describes her as someone who has always been “a people pleaser” and who became anxious and worried if she felt approval being withheld. However, it seems that the mother has also always been an enterprising and independent person: from the age of 14 she has had a job as a hairdresser and she is qualified to teach hairdressing. She decided to travel to Australia alone and has always been self-supporting there. 8. Life so far from her family was not always easy and for some years in Australia she was alcohol dependent. From April 2019 she received therapy from a psychologist and she had medication prescribed by her GP. At the end of 2019 she attempted to take her own life whilst intoxicated and was admitted to hospital. She flew to England and recuperated with the care and love of her family. She gave up drinking and was able to rent her own flat, build her own business as a hairdresser, work a second job as a carer for people with mental health difficulties and disabilities, and maintain close friendships and a good support network.”
“The mother experienced a mental health crisis characterised by panic and overwhelming fear about the future for her and A in Australia. As she had done after self-harming in 2019, she felt a desperate need for the support of her family. She bought a plane ticket at lunchtime and flew out in the early evening. The maternal grandmother states that the mother immediately informed her that she had come home because she was worried the father would seek to rely on her mental health as a way of removing A from her. On 2 December, she phoned the father and told him that she and A were in England.”
“It is therefore submitted that in all the circumstances and taking a holistic view of the matter, the mother’s mental illness, the impact on the mother of a return to Australia, the lack of practical protective measures on the ground and the cumulative effect of the mother being stripped away from her familial support network, will make it intolerable for A to be returned to Australia and expose her to a grave risk of harm. It is axiomatic that it would be contrary to his best interests. It is submitted that the Court should exercise its discretion not to return this child summarily. The Mother and A have a large maternal support network here that cannot be replicated in Australia and the Father can no doubt reapply for a visiting visa or appeal his refusal on the grounds, the Court is reminded that he did not give full information in his original application … and this no doubt counted against him. Had he been allowed to visit then it is assumed this application would never have been made (6 months after the Mother and child left Australia).”
“24. The mother has clearly had a long standing mental health issue and depression. This did not prevent her travelling to Australia and remaining there for 13 years, where she had the insight to access GP and psychological services to support her and address her mental health. 25. Whilst in Australia, she accessed and attended all the support services Dr Ratnam is now advocating. She also continued to work, as she currently is in England. In fact the evidence demonstrates a certain robustness to the mother who has always managed independently in Australia. 26. As in any other case, where a return order is made to an objecting parent, that parent is likely to suffer an adverse impact on their mental health. However, whilst the return to Australia may be uncomfortable for the mother, it will be submitted that it does not amount to an intolerable situation or that as a consequence A would be at grave risk of harm.”
“The GP notes refer to [the mother] having difficulty coping on22 November 2023 . From [the mother’s] account, her mental health has impacted upon her functioning and she reported that her mother supported her significantly in daily tasks. Most of her activities outside the home involve family members. She has started working one day a week and although it helps distract her from her circumstances, she finds it difficult to concentrate.”
“Depression can impact on a mother’s emotional availability to a child due to preoccupation with negative thoughts. However [the mother] denied difficulties attending to [A’s] emotional needs and the GP notes do not raise concerns regarding this. It appears that she has significant practical support from her mother, which allows her to focus on [A].”
“What impact, if any, would a return to Australia have on the mother’s (a) current mental health (b) future mental health and (c) ability to parent [A].”
“It is likely that a return to Australia would impact adversely on [the mother’s] current and future mental health. She was depressed at the time of assessment and reported passive suicidal thoughts with expressions of hopelessness should she return to Australia. She also reported symptoms of anxiety. Whilst adequate treatment is available in Australia, other factors are also important in recovery and maintaining stability of mental health. Social support is important in recovery and although [the mother] reported that she had some friends in Australia, she has a more extensive support system in the UK.”
“So she does have a history of suicidal ideation and thoughts of self-harm when depressed so they’re – there is a risk of that. But what I would be concerned about particularly if there were further deterioration in [the mother’s] mental health with a lack of significant support is the impact of that on parenting and the impact of depression on parenting”
“whether the risk … of a deterioration in the mother’s health on a return is going to pose a grave risk, not just a risk but a grave risk, to [A] or [whether] the risk of psychological deterioration in the mother’s mental health is such that … there’s a risk of [A] experiencing a situation which she shouldn’t be asked to tolerate”
“I think it really depends on what is put in place for mother should she return to Australia. So if the mother is to return to Australia with her mother as a form of support but that would be limited, the medication is optimised, that there is psychological support, those are some mitigating factors regarding further deterioration in her mental health. If I can (inaudible) it that might be that even in those circumstances she will [not] achieve a full remission from her mental health problems given that she’s – that’s not occurred whilst she’s even been in this country and there’s been ongoing support (inaudible). But her mental health has not affected her ability to respond emotionally to [A]. She’s not presented as an emotional event trigger. She’s been able to pick up on [A’s] issues, at home [A’s] emotional and day to day needs albeit with a lot of support regarding practical tasks such as cooking, shopping and washing. My concern would be if and when her mother leaves Australia and she is in Australia with a few friends but very little consistent support from what I could understand, and this is a mother who has a long history of mental health difficulties which dates back to her adolescence, so she is vulnerable to relapses. We know that individuals with (inaudible) episodes of depression the vulnerability – the risk of relapse can be between 70 and 90 per cent of depression. So there is a significant risk of deterioration or relapse. In that context and with ongoing stressors which might include court proceedings and there will be – it would be difficult to avoid [the father] for sure because they have a child together so that will be an ongoing part of [the mother’s] life in this country and in Australia but it needs support structures around that and should her mental health deteriorate further which is likely to happen if she feels isolated with her past history of depression then there is a risk of her becoming emotional about [A] and [A’s] experiences of a mother who is not able to consistently respond to her which can affect attachment with [A] although it’s likely that [the father] will be a significant attachment factor – figure and so she will have that consistency. But for [A] having a mum who is not always emotionally available or emotionally distressed could impact on her own emotional wellbeing.”
“the thing about psychiatry is that we’re not a clear science so individuals’ responses will vary. I think it’s – whilst there might be some improvement in symptoms I think it is very unlikely that even with amelioration, sorry, even with augmentation there would be a complete resolution of symptoms.”
“the mother is convinced that she would not be able to cope on her own in Australia without in person support from her family there. The written evidence indicated that in the event of a return order being made, the plan was that the maternal grandmother would accompany the mother and A to Australia and stay for around a month before returning to England. During submissions, it was indicated that there had been a change. The grandparents have had to juggle their caring responsibilities and to accommodate these and other commitments, it was the grandfather who would fly out and he would be able to stay for around three weeks.”
“32. Dr Ratnam’s evidence was that currently, the mother fulfils the criteria for a diagnosis of recurrent depression, generalised anxiety and PTSD. A diagnosis of that last condition would depend on the trauma having occurred. If the nature of the relationship was as the mother had described, her experience of it could lead to symptoms of PTSD. The mother had been distressed when assessed. She reported feeling she would be under threat from the father in Australia. In her opinion, the mother’s baseline was low, depression was impacting her ability to function, and she was only able to manage with significant help from her own mother, sisters, father and wider family. Upon leaving England, she would lose the familial support system on which she depends. In Dr Ratnam’s view, a return to Australia in those circumstances would be a significant trigger for further deterioration in her mental health conditions. 33. She considered that the mother’s medication could be optimised: the existing dose could be increased and another medication added. However, she explained that when a person is taking antidepressants and receiving therapy but continues to be subject to significant stressors, the treatment effect is limited. Dr Ratnam’s opinion was that as the mother had not experienced remission whilst in England, remission in Australia was unlikely. Continuation of the present support provided by family members was very important to the prospects of recovery. 34. In response to questions from Mr Gupta, Dr Ratnam did not appear concerned that there was a significant risk of alcohol abuse recurring or repetition of suicidal ideation that would cause a risk of harm to A. The mother was four years into recovery from alcohol dependence and five years was considered advanced. A vulnerability remained but the mother had good insight into her mental health and could identify when she was tempted to have a drink. She would know how to manage those risks. Dr Ratnam was unable to predict the extent of the impact on the mother’s parenting of A if her current depression and symptoms deteriorated, save to say that depression can impact on a parent’s ability to respond to a child’s emotional and physical needs consistently. 35. When asked about that further, she said that the impact on A would depend on the availability of support. If the mother returned to Australia with her own mother, medication was optimised, and psychotherapy was delivered, the risk of A coming to harm as a result of the mother’s impaired mental health would be mitigated. The concern would increase if or when that in person family support was no longer available. If the mother then felt isolated, there was a risk of deterioration and her becoming emotionally remote and unable to respond to A. When Mr Jarman reminded Dr Ratnam that there was no evidence that the mother had ever been emotionally unavailable to A, her response was that in this case, the past was not a reliable guide to the future.”
“I agree about the efficacy of the coping strategies the mother had put in place to manage her anxiety and recurrent depression between her arrival in Australia in 2013 and A’s birth ten years later. I also agree with his assessment that during that decade she demonstrated considerable independence, drive and resilience and she functioned to a high level. I accept too that to date she has met all of A’s needs and has not been unavailable to her emotionally. The submission I am unable to accept is that because she has managed her mental health symptoms well in Australia, the possibility, if she returns, of her not coping to an extent that exposes A to the risk of grave harm can be excluded with confidence.”
“The suggestion that the issue of the extent of the effect on A of any deterioration in her mother’s mental health must be a matter of speculation is not wholly wrong. A is not a child who has already been exposed to the situation that she will experience upon summary return because her mother has never lived alone with her in Australia for more than a few days. But what the 1980 Convention requires is an assessment of the future risks, whether or not they have already been run. In making that assessment, I have looked holistically at the mother’s past prior to A’s birth, her life with A to date, and the expert evidence.”
“b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
“there is no need for the article to be “narrowly construed”
“[33] Second, the risk to the child must be “grave”
“this court considered the situation in which the anxieties of a respondent mother about a return with the child to the state of habitual residence were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child’s situation would become intolerable. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk; and will, among other things, ask itself whether they can be dispelled. But in In re E it was this court’s clear view that such anxieties could in principle found the defence. Thus, at para 34, it recorded, with approval, a concession by Mr Turner QC, who was counsel for the father in that case, that, if there was a grave risk that the child would be placed in an intolerable situation, “the source of it is irrelevant: e g, where a mother’s subjective perception of events lead to a mental illness which could have intolerable consequences for the child”
“The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned.”
“There is a connection between the nature of the risk and the assessment of whether it is a grave risk within the scope of Art 13(b). The more serious or significant the character of the risk, the lower the level of the risk which ‘might properly be qualified as “grave”’, and vice-versa.”
“the likely psychiatric and psychological impact on [the mother] of a return to Australia is significant and severe” and In re B (A Child)[2021] 1 WLR 517 in which, at [111], “Dr Ratnam’s evidence … established that the mother’s mental health would be likely significantly to deteriorate” on a return to Bosnia. Dr Ratnam’s evidence, that there was a significant risk, does not, therefore, support the judge’s conclusions that there was a risk of, what would clearly be, a very significant deterioration. I would also reject Mr Gupta’s submission that when Dr Ratnam said that there was a “significant” risk of deterioration this “can be equated with ‘grave’”