“Towards the end of our relationship, the Applicant would be calling me derogatory names, he would kick me out of our bedroom and he would blame me for the fact that we had not had a second child. If I were to return back with B to Australia, I firmly believe that the Applicant would subject me to the same sort of behaviour. I also believe that he would control the relationship that I have with B as he does not like the fact that B and I are extremely close. This could be extremely harmful to B. I also believe that he would prevent me from leaving Australia again to see my family.”
“4. On day one, the Court heard an oral application made by the mother for Dr McDermott to give oral evidence. This application was refused. The Court then heard submissions from the parties’ counsel.”
“[20] In circumstances where serious allegations are raised by one party and denied by the other, I should first consider whether the allegations would, if true, give rise to the grave risk/intolerability of which I have spoken. In analysing whether allegations are of sufficient detail and substance to give rise to a grave risk, I need to consider whether the evidence enables me to confidently do that. I must be careful when undertaking this evaluation based only on the paper evidence. I should not therefore discount allegations of harm simply because I have doubts about their validity or cogency. [21] If a grave risk/intolerable situation is likely to exist, I must then ask how the child can be protected from that risk/situation by considering what protective measures are available and their efficacy. The appropriateness of such measures and their efficacy will depend on the particular facts of the case and the relevant country involved. It is, as I have already said, necessary to examine the situation that the child will face upon return and undertake that examination in very concrete and practical terms.”
“[27] It is the doctor’s opinion that mother is currently in a highly vulnerable state of mental health where she is at high risk of clinical depression in the event of existing stressors continuing or increasing. Mother is reported as presenting as hugely stressed, seriously anxious and profoundly worried about her immediate future as it relates to crucially important figures in her life, namely her mother, her father and her son. Mother’s mood, sleep, appetite and her energy are significantly disturbed in an ongoing way. Perhaps unsurprisingly given the circumstances that she finds herself in, mother is reported as being exhausted and in survival mode. [28] Dr McDermott was asked about the likely impact on mother’s emotional psychiatric health if B returns to Australia and on her ability to parent B in those circumstances. She gave the opinion that, given mother would return with B to Australia if a return were ordered and as a consequence she would leave her sick and vulnerable mother and terminally ill father to what she regards as uncertain care by others, mother would be at serious risk of developing a significant degree of clinical depression. Depending on the degree to which that depression developed, if it became moderate to severe, then more likely than not there could be negative consequences to her emotional availability to, and responsiveness towards, B. Of course, this would all be in the context of the extent to which any moderate to severe depression is capable of being ameliorated in some way by treatment. The doctor further opined that in the event that a return is ordered, there is a high likelihood of a significant deterioration in mother’s mental health and it is more likely than not that she would suffer some form of clinical depression to a significant degree. If that depression was persistent and untreated or unresponsive to treatment, it could result in a negative impact on her ability to parent B. [29] In contrast to that, if B is not required to return, mother’s mental health prognosis is assessed to be ‘good’.”
“[37] … I must take into account where relevant the extent to which they are likely to be effective in terms of compliance, as well as remedies available in the absence of compliance. So the issue is the effectiveness of any undertaking or intended soft landing. A distinction needs to be drawn between practical measures and any other measures needed to protect a child on return. The efficacy of the latter must be addressed with real care.”
“[38] Unless the contrary is proved, which in my judgment it has not been in this case, the assumption must hold that the administrative, judicial and social services in Australia are equally adept at promoting the welfare of, and protecting, a child as they are here in England and Wales. Considering enforcement, I note that Australia is a signatory to the 1996 Hague Convention.”
“Although I have received some evidence that a psychiatrist may not be available through her employment or father’s employment healthcare schemes, nevertheless mother was able to access therapy in Australia and continues to do so, and it has not been seriously suggested that Australia lacks appropriate services to treat depression that mother will be able to access, even if she has to self-fund.”
“[47] As I have already rehearsed in this judgment, the overall balance of Dr McDermott’s opinion, that I accept, is nuanced. Her opinion is that there is a ‘high risk that mother will develop clinical depression’ or a ‘serious risk of developing a significant degree of clinical depression’. That of itself does not generate a grave risk/intolerable situation for B. She qualifies her opinion by saying only that untreated or unresponsive moderate to severe clinical depression “could” impact mother’s ability to parent B. In my judgment, that amounts to a mere possibility (not probability) of an impact on B in a limited combination of circumstances. There is no evidence to establish that mother would be unresponsive to treatment nor unable to obtain treatment, even if her depression became severe. In these circumstances, the likely impact on B is remote, and not sufficiently evidenced to justify a finding that the Article 13(b) exception has been established. [48] Nevertheless, if I am wrong about the absence of a grave risk/intolerable situation, the proposed protective measures/soft landing provisions are, in my judgment, more than adequate to ameliorate any such risk, in combination with my confidence that mother will be able to access appropriate medical, judicial and administrative services in Australia. As for housing for her and B in Australia, if she is right about the shortage of rented accommodation and the delay in evicting the sitting tenants from her own house, my intentions for a delayed return date will meet those concerns if she acts now. [49] Finally, when considering B’s return to Australia, there is of course a discretion for the court to exercise, but it is clear to me that any discretion should not be exercised to prevent a return for the following reasons. In my judgment, the court should uphold the public policy considerations of the Convention where there has been, as here, a wrongful retention and mother has the ability to apply to the Australian court for relocation on welfare grounds. Further, non-return will result in the continued separation of B from his father and from his half-sibling … without any welfare analysis of whether that may be in B’s best interests. My clear conclusion is that B should be returned summarily in accordance with the 1980 Convention to Australia where future decisions about his welfare can be properly made.”
“… the evidence undoubtedly establishes that “there is a significant risk of deterioration or relapse” in the mother’s mental health but it does not establish that the nature or extent of any such deterioration or relapse would be likely to expose A to a grave risk of psychological harm or otherwise place her in an intolerable situation. The nature of the risk to A, as expressed in Dr Ratnam’s evidence, is that depression can impact on the ability of a parent to respond “consistently” and can affect attachment with A which could impact on A's own emotional wellbeing.
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – … 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.”
“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.”
“the court must assess the nature of the risk, the likelihood of the risk materialising and the consequences of the risk materialising for the child. In a case such as the present, for the purposes of determining whether the circumstances set out in Article 13(b) have been established, this will involve consideration of the nature or extent of any potential deterioration or relapse in the mother’s mental health and the nature or extent of any potential impact on [the child].”
“If the judge concludes that the allegations would potentially establish the existence of a grave risk within the scope of article 13(b), then, as set out in In re E, at para 36, the court must ‘ask how the child can be protected against the risk’. This is a broad analysis because, for example, the situation faced by the child on returning to their home state might be different because the parents will be living apart. But, the court must carefully consider whether and how the risk can be addressed or sufficiently ameliorated so that the child will not be exposed to a grave risk within the scope of article 13(b). And, to repeat what was said in In re E, at para 52: ‘The clearer the need for protection, the more effective the measures will have to be.’”
“[71] Secondly, I agree with Mr Turner that it is not necessary for a judge to undertake the In re E approach as a two-stage process because, as set out in my judgment in In re W (Children)[2018] EWCA Civ 664 ;[2019] Fam 125 , para 48: “The question of whether article 13(b) has been established requires a consideration of all the relevant matters, including protective measures …”
“The authorities make clear that the court is evaluating whether there is a grave risk based on the allegations relied on by the taking parent as a whole, not individually.
“2.9(b) [The applicant’s evidence must contain] a description of any protective measures (including orders that may be subject to a declaration of enforceability or registration under Art 26 of the 1996 Hague Convention or, where appropriate, undertakings) the applicant is prepared, without prejudice to his or her case, to offer for the purpose of securing the child’s return, including the extent to which any undertakings offered and accepted in this jurisdiction are capable of enforcement in the requesting jurisdiction.”
“3.11. In deciding what weight can be placed on undertakings as a protective measure, the court will take into account the extent to which they are likely to be effective both in terms of compliance and in terms of the consequences, including remedies, in the absence of compliance. The issue is the effectiveness of the undertaking in question as a protective measure, which is not confined solely to the enforceability of the undertaking. There is a need for caution when relying on undertakings as a protective measure, and undertakings that are not enforceable in the courts of the requesting State should not be too readily accepted. There is a distinction to be drawn between the practical arrangements for the child’s return and measures designed or relied on to protect the child. The efficacy of the latter will need to be addressed with care. The more weight placed by the court on the protective nature of the measures in question when determining the application, the greater the scrutiny required in respect of their efficacy.”
“It should be noted that voluntary undertakings are not easily enforceable, and therefore may not be effective in many cases. Hence, unless voluntary undertakings can be made enforceable in the State of habitual residence of the child, they should be used with caution, especially in cases where the grave risk involves domestic violence.”
“First, in respect of Ms Cooper's submissions about the efficacy of undertakings given to the English court, it is clear that, in deciding what weight can be placed on them, the court has to take into account the extent to which they are likely to be effective. This applies both in terms of compliance and in terms of consequences, including remedies, in the absence of compliance. The issue is their effectiveness which is not confined to their enforceability: see, for example,H v K and Others (Abduction: Undertakings)[2017] EWHC 1141 (Fam) ,[2018] 1 FLR 700 , at [61]. In saying this, because I acknowledge the concerns that have been expressed about the court's perhaps giving insufficient weight to the point made by Ms Cooper and the need for caution when relying on undertakings, I make clear that I am not saying that enforceability is not an issue, only that it forms one element of the court's assessment.”
“In a case such as the present, for the purposes of determining whether the circumstances set out in Article 13(b) have been established, this will involve consideration of the nature or extent of any potential deterioration or relapse in the mother’s mental health and the nature or extent of any potential impact on [the child].”