CT (A Child) (Abduction: Art 13b: Mental Health), Re [2026] EWHC 1590 (Fam)

[2026] EWHC 1590 (Fam)Case No FD25P00755
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
INCORPORATING THE 1980 HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
IN THE MATTER OF CT (A BOY)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25 June 2026
Before
MR DAVID REES KC(Sitting as a Deputy Judge of the High Court)(In Private)(Re CT (A Child)(Abduction: Art 13b: Mental Health))
Between
NVApplicantYTRespondent
Mr Teertha Gupta KC and Mr Jonathan Evans (instructed by Passmores Solicitors) for ApplicantMr Christopher Hames KC and Ms Mavis Amonoo-Acquah (instructed by Dawson Cornwell LLP) for RespondentHearing Hearing date: 24 June 2026Approved JudgmentThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Mr David Rees KC:

[1]The Applicant father seeks the summary return of CT to Australia pursuant to the 1980 Hague Convention (“the Convention”). The application is opposed by the Respondent mother.[2]The father is represented by Mr Teertha Gupta KC and Mr Jonathan Evans; the mother by Mr Christopher Hames KC and Ms Mavis Amonoo-Acquah. I am grateful to all counsel for their comprehensive written and oral submissions.

Background

[3]CT is two years old. He was born in Australia and is an Australian Citizen, as are both of his parents.[4]Both parents have lived most of their lives in Australia, although the mother spent some of her childhood in other parts of the world. They commenced a relationship in 2018, although this broke down in the middle part of 2021. A year or so later they resumed their relationship, and at the start of 2023 they moved in together in a rental property. In the autumn of that year the mother became pregnant. There were discussions between the parties about a termination. The mother went so far as to book an appointment for one, but ultimately decided not to do so. Shortly thereafter the parties separated and the father moved out of the property.[5]As I will explain in greater detail below the mother makes a number of allegations concerning the father’s conduct within the relationship, arguing that his behaviour towards her was controlling and emotionally and psychologically abusive.[6]The child was born in Australia in the summer of 2024. The father was present at the birth. The mother registered the birth, but did not name the father on the birth certificate. In August 2024 there was an incident between the parents which led to the mother calling the Police.[7]In September 2024, the mother applied for an Australian passport for the child, without informing the father. This application identified that she wished to travel abroad for one month.[8]The following month, the father discovered that he had not been named on the birth certificate and instructed solicitors to write to the mother regarding arrangements for the child, and seeking mediation.[9]On 24 November 2024 the mother and child left Australia for London. They did so without the father’s consent and indeed he did not become aware that they had left the jurisdiction until May 2025, following a disclosure order that he obtained in proceedings in Australia against the Australian Department of Foreign Affairs and Trade.[10]There were some delays in the Australian Central Authority accepting the father’s application. However, proceedings for a summary return under the Convention were issued in this court on 11 November 2025, shortly before the first anniversary of the child’s removal from Australia. A without notice location order was granted on 17 November 2025.[11]The location order was executed on 20 November 2025. The mother and child were located at the Eurostar terminal in London as they were seeking to leave the jurisdiction. It transpired that they had been living in Spain and were visiting the UK.[12]Inter partes hearings took place on 1 December 2025 and 23 January 2026. The mother’s initial answer to the application sought to argue that the father did not have rights of custody and that the child was habitually resident in Spain, although these defences have subsequently been dropped. She now relies on Art 13b of the Convention: that there is a grave risk that that the child’s return to Australia would expose him to physical or psychological harm or otherwise place the child in an intolerable situation.[13]An initial application by the mother to instruct a psychiatrist to report on her mental health was refused by Williams J on 23 January 2026. A renewed application was refused by Harrison J on 13 March 2026. The matter had been listed for a final hearing on 23 March 2026. The mother made a third application to obtain a psychiatric report which was granted by Ms Victoria Butler-Cole KC, sitting as a Deputy High Court Judge on 23 March 2026, with the final hearing being adjourned and relisted for 20 and 21 May 2026. This fixture was itself adjourned as the judge considered the time estimate inadequate and the matter now comes for final hearing before me.[14]It is now common ground that the child was, in Convention terms, wrongfully removed from Australia by the mother in breach of the father’s rights of custody and that at the date of wrongful removal the child was habitually resident in Australia. The mother’s opposition to a return is based on Art 13b, and that opposition has two intertwined limbs which either individually or cumulatively mean that a return would expose the child to a grave risk of the type of harm identified in Art 13b. These are limbs are:a. The mother’s physical health and specifically her inability to control her type 1 diabetes; andb. Her mental health. Further, whilst recognising that the mother’s allegations of domestic abuse against the father would be unlikely by themselves to successfully found an Art 13b defence (having regard to the protective measures that would be available), Mr Hames relies upon these allegations as providing a context and foundation for the fear that the mother now has of returning to Australia.

The Law

[15]There was no real dispute between the parties on the applicable legal principles. In their skeleton argument Mr Gupta and Mr Evans took me to the summary provided by Baker LJ in Re IG (Child Abduction: Habitual Residence: Article 13b) [2021] EWCA Civ 1123 at [47]:
“(1) The terms of Article 13(b) are by their very nature restricted in their scope. The defence has a high threshold, demonstrated by the use of the words “grave” and “intolerable”. (2) The focus is on the child. The issue is the risk to the child in the event of his or her return. (3) The separation of the child from the abducting parent can establish the required grave risk. (4) When the allegations on which the abducting parent relies to establish grave risk are disputed, the court should first establish whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then establish how the child can be protected from the risk. (5) In assessing these matters, the court must be mindful of the limitations involved in the summary nature of the Hague process. It will rarely be appropriate to hear oral evidence of the allegations made under Article 13(b) and so neither the allegations nor their rebuttal are usually tested in cross-examination. (6) That does not mean, however, that no evaluative assessment of the allegations should be undertaken by the court. The court must examine in concrete terms the situation in which the child would be on return. In analysing whether the allegations are of sufficient detail and substance to give rise to the grave risk, the judge will have to consider whether the evidence enables him or her confidently to discount the possibility that they do. (7) If the judge concludes that the allegations would potentially establish the existence of an Article 13(b) risk, he or she must then carefully consider whether and how the risk can be addressed or sufficiently ameliorated so that the child will not be exposed to the risk. (8) In many cases, sufficient protection will be afforded by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there. (9) In deciding what weight can be placed on undertakings, the court has to 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 for enforcement in the requesting State, in the absence of compliance. (10) As has been made clear by the Practice Guidance on “Case Management and Mediation of International Child Abduction Proceedings” issued by the President of the Family Division on 13 March 2018, the question of specific protective measures must be addressed at the earliest opportunity, including by obtaining information as to the protective measures that are available, or could be put in place, to meet the alleged identified risks.”
[16]They also made the following points:a. That it is well established that courts should accept that, unless the contrary is proved, the administrative, judicial and social service authorities of the requesting State are equally as adept in protecting children as they are in the requested State, and it is hard to establish a grave risk of harm based on speculation as opposed to proven inadequacies in the particular case (see G v D (Art 13(b): Absence of Protective Measures) [2021] 1 FLR 36 per MacDonald J at [39]).b. The Court has to consider both the likelihood of the risk arising and the nature or gravity of that risk if it does occur. 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 (see Re B (A Child), Re (Abduction: Article 13b: Mental Health) [2024] EWCA Civ 1595 at [51]).[17]For the mother Mr Hames and Ms Amonoo-Acquah provided me with a summary of the principles to be derived from the decisions of the Supreme Court in In re E (Children: Custody Appeal) [2011] UKSC 27 and Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10 making the following points:a. The burden of proof lies with the person who opposes the child’s return. The standard of proof is the balance of probabilities;b. Article 13(b) is not to be constructed narrowly; by its very terms, it is of restricted application. The words of the Article were plain and needed no further elaboration or gloss;c. It is rarely appropriate to hear oral evidence of the allegations made under article 13(b);d. The risk of the harm must be “grave”; it was not enough for the risk to be “real”. It must have reached such a level of seriousness as to be characterised as “grave.” A relatively low risk of death or really serious injury might properly be qualified as “grave” while a higher level of risk might be required for other less serious forms of harm;e. Intolerability denotes a situation that the particular child in the particular circumstances of the case should not be expected to tolerate;f. The source of the risk is irrelevant: eg. where a mother’s subjective perception of events leads to a mental illness which could have intolerable consequences for the child;g. When assessing the risk that a child faces on return the court will have regard to protective measures;h. Where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is bound to be on the sufficiency of any protective measures which can be put in place to reduce the risk. The clearer the need for protection, the more effective the measures will have to be;i. Inherent in the Convention is the assumption that the best interests of children as a primary consideration are met by a return to the country of their habitual residence following a wrongful removal. That assumption is capable of being rebutted only in circumstances where an exception is made out.[18]Their submissions also identified that:a. It is the return to the requesting state rather than the enforced removal from the requested state which must be considered when looking at an argument of “intolerability” under Art 13b (Re D (A Child) [2006] UKHL 51 per Baroness Hale at [52]);b. In assessing whether there is a grave risk for the purpose of Art 13b the court must consider the cumulative effect of the allegations for the purpose of evaluating the nature and level of any grave risk. (In Re B (Children) [2022] EWCA Civ 1171 per Moylan LJ at [70).c. Although the effect of the mother establishing a defence under the Convention is to give the court a discretion whether to order a return, as Baroness Hale observed in Re D (supra) at [55] “it is inconceivable that a court which reached the conclusion that there was a grave risk that the child's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate”.[19]Both parties made reference to Re B(A Child) (Abduction: Article 13(b): Mental Health) [2024] EWCA Civ 1595. The facts of that case have some similarities with this one, as it was a case where a respondent mother was relying upon her mental health condition to found a defence under Art 13b to a summary return to Australia. At para [54] Moylan LJ held as follows:
“As Mr Gupta submitted, the key question, not in abstract but in real terms and adopting what Lord Wilson said in Re S, is what is likely to happen if the mother and A were to return to Australia. Is the likely effect on the mother’s mental health sufficient to establish a grave risk that A would be exposed to physical or psychological harm or otherwise placed in an intolerable situation? As referred to above, this requires consideration of the nature of the risk; the likelihood of the risk materialising; and the consequences of the risk materialising for A. These are for the purposes of answering the ultimate question, namely whether there is a grave risk that returning A to Australia would expose her to psychological harm or otherwise place her in an intolerable situation.”

The Evidence

[20]I turn then to the evidence on the main issues before the court. As is usual in a summary return application such as this neither parent gave oral evidence. However, Dr Ratnam the independent consultant psychiatrist who had prepared a report for the court attended remotely and was cross-examined by both Mr Gupta and Mr Hames. (1). Domestic Abuse[21]As I have previously indicated, the mother has made allegations of domestic abuse against the father, although these are largely denied by the father. The mother contends that after the parties’ relationship initially ended in 2021, the father continued to contact her in a way that made it difficult for her to move on. In early 2022 they began couples therapy and by July 2022 they had reconciled and in early 2024 leased a property together. The mother describes her experience of this period thus: “I found myself constantly anxious, overwhelmed, and hurt. There were good moments, but they were completely overshadowed by the fear, the instability, and the emotional exhaustion that became my everyday reality. Looking back, I realise how trapped I felt. [The father] was coercive and controlling. He dictated our routines, our weekends, who we saw, what I wore, what I cooked, and even how I spent my own money. I continually tried to meet his expectations and be the ‘good partner’ he and his family expected, even when it meant ignoring my own needs and feelings. I lived in a state of hyper-vigilance, frequently questioning my own perceptions and normalising behaviour that caused me distress. Despite living together we weren’t emotionally aligned, financially interdependent, socially integrated, or building a shared future. The relationship was unstable and unequal, shaped by fear and pressure rather than mutual support or security. It was not a partnership, nor was it a genuine, stable domestic relationship in any meaningful sense.[22]The mother refers to both the father’s physical strength and short temper and recounts an incident that she says took place on 23 October 2023 when the father became angry with her, kicking a cardboard box at her that hit her leg. She says that she began throwing clothes and shoes into the bedroom and that the father shoulder-charged her so hard that she fell, bruising her leg against the corner of the bed. I have seen a picture of that bruise. She describes the father as “gaslighting” her by saying that he hadn’t done it on purpose, calling it a “love tap”.[23]A few weeks later the mother discovered that she was pregnant. The mother claims that the father reacted aggressively on being told and began “exerting sustained pressure” on her to terminate the pregnancy; she claims that further pressure came from the father’s parents. Although the mother scheduled a termination she did not attend the appointment. This led to further arguments between the parents with the father placing pressure on the mother to reschedule; on one occasion throwing a juice pack at her face.[24]The mother has provided a number of very short clips from conversations and arguments with the father around this time that she covertly recorded. Because these are extremely short (a few seconds), there is no context in which to place them. However, they do show that the father was displaying anger and expressing himself in language which included physical threats, for example saying “All I want to do is put your head through a wall, although I still love you to bits”. The mother contacted a woman’s refuge and made plans to leave their shared property, something that she did whilst the father was his family over Christmas.[25]Notwithstanding their separation, the father attended a number of the mother’s medical appointments during her pregnancy. He was also present at the birth, although the mother says that she did not want this, but he applied relentless pressure so that she ultimately agreed. The father was present every day that the mother was in hospital.[26]In early August an incident occurred. The father attended the mother’s house and she says that she confronted him about the abuse she had endured through their relationship. The father denied this, and refused to leave prompting the mother to call the Police.[27]In September 2024, the mother applied for a passport for the child, and subsequently began to take steps to travel to London to stay with her mother and siblings who were here at the time. On 22 November 2024, two days before leaving Australia, the mother called the Police and reported the incidents of domestic violence specifically, the shoulder charge, the comment about putting her head through a wall and the throwing of the juice carton that I have recounted above.[28]The father denies subjecting the mother to any form of domestic abuse. He accepts that the short recordings made by the mother do not “show the best” of him, but argues that they are out of context and that the mother has essentially cherry picked them. He also accepts that he initially did not want the mother to have the child, but once she had made up her mind to keep it, he argues that he was supportive. Following the mother’s report to the Police in November 2024 the father was arrested and questioned. Three of the allegations against the father were not proceeded with. He was charged with one allegation, but this was subsequently dropped. The father also refers to a Family and Violence Order (which I understand to be an equivalent of a Non-Molestation Order) which was made, with the father’s agreement on a non-admissions basis, in August 2024 for a two year period. (2). Physical Health[29]The mother is in her early 30s. She has type 1 diabetes and Graves’ Disease (hyperthyroidism) and it is her diabetes, its management, and the risk of suffering diabetic ketoacidosis (“DKA”) that she relies upon in support of her Art 13b defence. DKA is a complication of diabetes that occurs when a lack of insulin causes ketones to build up in the blood. It can be life-threatening and requires urgent hospital treatment.[30]The mother was diagnosed with diabetes as a child. She recounted to Dr Ratnam, the independent consultant psychiatrist that has reported in this case, that she was hospitalised because of her diabetes once during childhood. However, when she was at university, she had more frequent hospitalisations because she found managing diabetes to be a lot to cope with whilst also studying and working. She described wanting to go out with friends and socialise and this meant that diabetes management “wasn’t as much as a priority” leading to incidents of hypoglycaemia (low blood sugar) and DKAs. Once she was working, her life had more structure and her diabetic control was better. She told Dr Ratnam that there were issues with her diabetic management during the initial phase of her relationship with the father, but that during her pregnancy she was strict about it and had been under the care of a private endocrinologist who specialised in high-risk pregnancies.[31]After the child was born she described her diabetic management as poor. She was coping with a new baby and had a difficult relationship with the father. She was not eating regularly and forgot to take insulin because she did not have the time. After she left Australia the mother was in the UK for a few months and then moved to Spain where her sister was living. During her time in Spain her diabetic control was “great”. The mother was visiting London in November 2025 when these proceedings were served. Since then her diabetic control has been poor. The mother told Dr Ratnam that she tends to get so caught up in the case that she cannot control her thoughts about having to return to Australia. This means that she sometimes forgets to take her insulin and has to play catch up. Dr Ratnam also comments that it is difficult to control glucose levels during periods of stress.[32]The mother has attended hospital for diabetes related matters on a number of occasions in the past few months. On 14 March 2026, the day after a hearing in this case, the mother attended hospital with an extremely painful eye and was diagnosed as having a DKA, She was immediately admitted. The hospital notes record that the child was distressed when separated from the mother, and he spent the night in the paediatric ward in the hospital in the presence of the mother’s cousin. The mother and child were discharged the following day. She has had three further DKA admissions, on 22/23 March 2026, 9/10 April 2026 and most recently on 17/18 June 2026, being admitted the day after a mediation with the father seeking to resolve these proceedings. On that occasion the child was looked after by the mother’s sister. A letter dated 1 June 2026 from the mother’s diabetes dietitian identifies that in the preceding week her blood glucose readings had only been in the target range 15% of the time.[33]The parties’ evidence has become drawn into a dispute as to whether the mother’s diabetes would be better managed with an insulin pump – something she has used in the past, and whether (if it would) such equipment would be available to her in Australia. The mother has filed some evidence indicating that under most private health policies in Australia she would have to wait 12 months before becoming eligible for such treatment, because it is a pre-existing condition. However, I do not have any expert evidence from a diabetes specialist as to how the mother can best control her insulin. The mother has recently discussed the use of an insulin pump with an NHS diabetes dietitian and I understand that she would be eligible for a pump on the NHS, although its use would require the mother to be more engaged with her glucose monitoring. I am told that if the mother moved abroad, the NHS would supply a few months of consumables. (3). Mental Health[34]The mother first applied for an expert psychiatric report within these proceedings at the hearing before Williams J on 23 January 2026. That application was dismissed. At that stage there was extremely limited evidence relating to the mother’s mental health, the main item being a letter dated 9 December 2025 from a psychologist in Australia who had seen the mother between December 2023 and October 2024. This report indicates that the mother had reported verbal and emotional abuse, physical aggression and financial and coercive control in her relationship to the father, consistent with the allegations that she now makes within these proceedings. The psychologist reported that:a. The mother experienced significant emotional distress during her relationship with the father;b. She presented as a mother who was consistently concerned about the safety, health and developmental needs of her child.c. Returning to Australia would not be in the mother’s best psychological interests as the loss of her current social supports and the anticipated stress and fear associated with renewed contact with the child’s father would likely compromise her mental health and in turn, negatively impact the child’s well- being.[35]Williams J, unsurprisingly, did not consider this to be sufficient to make an expert psychiatric report necessary within these proceedings. However, within hours of his refusal of the mother’s application, she had made an online GP request for a referral for anxiety and depression. This resulted in the mother being referred for cognitive behavioural therapy. With assistance from her solicitors the mother was also referred to a consultant psychiatrist, Dr Braithwaite.[36]A further application to rely on expert psychiatric evidence was dismissed by Harrison J on 13 March 2026 and the mother’s advisers took steps to gather further evidence.[37]A letter from the mother’s therapist dated 18 March 2026 records that the mother had reported experiencing intense episodes of low mood and anxiety / stress, although denying any active suicidal ideation or intention to harm herself. It continues:
“Our primary concern at the moment is the impact of [the mother’s] current difficulties on her mental health is now affecting her ability to manage her diabetes, having had two recent hospitalisations for diabetic ketoacidosis. She is receiving support through the diabetes centre to help her manage these difficulties, however has stated that she is struggling to action the advice she has been given by them. Recurrent diabetic ketoacidosis is known to be both linked to stress and subsequently, particularly when hospitalisations are involved, an additional stressor which can lead to a vicious cycle of worsening symptoms.”
[38]A letter from Dr Braithwaite, also dated 18 March 2026 describes the mother as presenting with symptoms of depression, panic attacks, flashbacks and intrusive thoughts. The mother described to Dr Braithwaite her anxiety and fears of being required to return to Australia. She told of daily anxiety with thoughts of a fear of dying, very low mood fatigue, poor concentration, lack of interest and diminished sleep and appetite. Testing suggested severe depressive features and moderate to severe anxiety. She reported that returning to Australia would expose the mother to ongoing psychological distress.[39]On the basis of this additional evidence Ms Butler-Cole KC acceded to the mother’s renewed application to instruct an expert psychiatrist and Dr Ratnam was instructed. She conducted two interviews with the mother on 16 and 24 April 2026. She explored the mother physical and mental health history in detail. The mother told Dr Ratnam that her anxiety decreased and mood improved after leaving Australia. However her mood deteriorated again when she was served with the proceedings. She described symptoms to Dr Ratnam as including low mood, disturbed sleep, loss of appetite, loss of motivation, poor concentration and reduced enjoyment describing feeling frozen and not being able to do anything. Dr Ratnam records:
“I asked [the mother] if not managing her diabetes reflected suicidal thoughts and she responded ‘I want it to stop … everything, I don’t want to do this anymore, maybe [the child] would be better off without me … I failed him, [the child] deserves the world, I’m not good enough.’”
[40]Dr Ratnam concluded that at the time of assessment the mother was moderately depressed without psychotic symptoms. She explains that in such an episode the individual meets criteria for depression and there is significant difficulty in functioning, particularly in domains of socialisation, self-care and family. She also considered that the mother fulfilled the criteria for a diagnosis of generalised anxiety. Her view was that the mother had also reported symptoms of PTSD, but she was not in a position to make such a diagnosis in the absence of a factual finding that the trauma said to have been experienced by the mother had actually happened. Dr Ratnam also considered the mother’s account to be consistent with episodes of dissociation which can be caused by stress.[41]Dr Ratnam explained that depression and anxiety can adversely impact on diabetes due to the release of the stress hormones cortisol and adrenaline which raise blood glucose levels and lead to a higher risk of complications whilst making diabetic management more difficult. Equally persistently high blood sugars and fluctuations in blood sugar worsen symptoms of depression and poorly controlled diabetes can impact the effectiveness of antidepressants. The mother had also told Dr Ratnam that her missed medication and inconsistent monitoring was also a reflection of suicidal thoughts.[42]Dr Ratnam’s report advised that the mother’s mental health impacts her ability to manage her type 1 diabetes: “…because depression, anxiety, panic and dissociative symptoms reduce her capacity to eat regularly, monitor glucose consistently, administer insulin reliably and respond promptly to physical warning signs. In practical terms, this means that during periods of acute stress she is less able to maintain routine, organise treatment tasks, prioritise her own care, and remain fully available for ordinary daily activities, with consequential impact on her general functioning and her ability to parent consistently”.43. She advises that a return to Australia would impact adversely on the mother’s mental health. Despite the prescription of an antidepressant the mother remains depressed and Dr Ratnam considered that even with treatment in Australia it is unlikely she would achieve recovery given the stresses associated with a return; as the mother would be returning to a situation which holds perceived threat and instability for her.44. Asked about protective measures, Dr Ratnam identified that the protective measures proposed by the father were likely to provide some practical containment and modest reassurance, but they would only partly ameliorate the mother’s mental health difficulties and would be unlikely to prevent further deterioration if she were returned to an environment she experiences as unsafe. She explained that this was because the principal drivers of the mother’s symptoms are not only practical deficits in support but also her perceived threat, anticipatory fear and the stress of ongoing proceedings, all of which would persist notwithstanding protective measures. Dr Ratnam recommended that if a return were ordered additional protective measures should be considered by the court including confirmed psychiatric follow-up, confirmed psychological follow-up and confirmed endocrinology follow-up being arranged before travel with prompt continuity of medication and a clear crisis plan. Alongside this should be a clearly identified practical support network to include help with child care during medical crises or court attendances. Without such support, Dr Ratnam felt that the risk of further psychiatric and diabetic destabilisation would remain significant.45. Finally Dr Ratnam identified that the mother’s medical notes indicate that her mental health had impacted on her functioning and she recorded that the mother’s depression had affected her emotional and physical interactions with the child and that panic attacks and dissociation had impacted her ability to respond to him, leading to frustration and distress on his part.46. The father’s solicitors posed a number of written questions to Dr Ratnam which were addressed in a supplementary report produced on 16 June 2026 (although erroneously dated 16 May). In that supplementary report Dr Ratnam confirmed her understanding that Australia has good mental health services. Asked about the stress that would be placed on the mother if a return were not ordered, but there were ongoing welfare proceedings in this jurisdiction, Dr Ratnam explained that the key stressor for the mother was the potential return to Australia and that whilst remaining in the UK would be unstable for the mother it would not hold the same perceived threat for her.47. As I have already indicated Dr Ratnam was cross-examined by counsel. In his questioning of the mother Mr Hames explored with Dr Ratnam her conclusion that the mother’s mental health would be likely to deteriorate if she returned to Australia. Dr Ratnam explained that she considered that there was a significant risk of a significant deterioration in the mother’s mental health in such circumstances. Both Mr Gupta and Mr Hames questioned Dr Ratnam over the comparative stress that would be experienced by the mother in the event of a return to Australia, against her remaining here and fighting welfare proceedings over the child’s future in this jurisdiction. Dr Ratnam considered that both would be stressful for the mother, but that remaining in this jurisdiction where she would be closer to her sisters and her own mother would be less extreme for her than a return to Australia.48. Dr Ratnam explained that she considered the mother’s reporting of her condition to be credible, and she advised that if the return was ordered, she would wish the mother to be immediately referred for additional NHS support as she considered that a return could lead to a risk of active suicidal ideation.49. I myself asked a question of Dr Ratnam about the effect on the child of a deterioration in the mother’s mental health if a return to Australia were ordered. She explained that this would affect the mother’s emotional availability and ability to parent. She already experienced episodes of dissociation and these would become more frequent.

Protective Measures

[50]The mother has set out a substantial list of protective measures and soft-landing provisions that she is seeking if a return is ordered. Many, but not all, of these have been agreed by the father.[51]The father has (among other matters) agreed to provide undertakings not to use or threaten violence against the mother or child; not to contact the mother save through a parenting app to agree or implement child arrangements; not to attend the airport on their return; not to separate or seek to separate the child from the mother’s care; not to institute or support proceedings against the mother as a result of the removal; not to attend at the mother’s address or place of work; and not to take proceedings in relation to the covert recordings made by the mother. Whilst the parties are not agreed on the details of the financial arrangements for a return, the father has agreed to meet the costs of reasonable accommodation for the mother and child, health insurance and child support in a total sum of AUD 3,533 per month and has identified various state benefits that the other as an Australian citizen would be entitled to claim. There is a dispute as to the level of health insurance cover which would be appropriate. The mother has been seeking a “gold” level of cover, but now argues that even this would not secure her access to an insulin pump.[52]In the course of the hearing yesterday Mr Gupta also indicated that his client would meet the cost of obtaining an insulin pump for the mother if that were not otherwise available to her, and that his client would take steps to put in place the additional measure identified by Dr Ratnam in her report if the Court considered it appropriate to do so.

The Parties’ Arguments

[53]The father therefore seeks the return of the child to Australia. He argues that the mother and child are Australian citizens and that Australia is their home country where welfare issues are best determined. The mother has spent most of her life in Australia, studying and working there and throughout that time has managed to control her diabetes. It is a country in which she is able to obtain support and a country where she and the child could be properly protected. Mr Gupta and Mr Evans point to what they say was the clandestine nature of the mother’s removal of the child from Australia, pointing to the referral to the Police on the eve of her departure and steps taken by the mother’s family to mislead the father as to her destination and to the purposes of the 1980 Convention.[54]As to the evidence of the mother’s mental and physical health, the father is sceptical of what the mother now reports, pointing to the mother’s previous ability to manage her diabetes and to the fact that the first attempt by the mother to obtain assistance in this regard took place a matter of hours after Williams J dismissed her first application to rely on psychiatric evidence within these proceedings. Whilst Mr Gupta accepts that I must, when assessing the allegations said to give rise to a grave risk, take them at their highest he says that the evidence is not sufficient, when considered alongside the protective measures that are proposed, to found an Art 13b defence.[55]For the mother, Mr Hames argues that it is clear from Dr Ratnam’s evidence that the Art 13b defence is made out in this case. The mother’s mental health is tied up with her fears arising from the past history of domestic abuse and her physical health. The significant risk of a significant deterioration in the mother’s mental health that a return would pose and its impact on the mother’s ability to care for the child, notwithstanding the protective measures that have been proposed mean that I should find that the necessary grave risk identified by Art 13b is made out in this case. He goes so far as to argue that to return the mother to Australia would risk her death and that accordingly Art 2 of the ECHR is also engaged in this case.[56]If I am satisfied that his Art 13b defence is made out then in the light of the dicta of Baroness Hale in Re D the court does not, in practical terms, have any real discretion to order a return, and the father’s arguments as to the purposes of the Convention and to which jurisdiction is best placed to investigate welfare issues are essentially irrelevant.

Discussion

[57]The mother’s mental and physical health and their impact on the child if a return is ordered hold the key to this case. I remind myself that:a. That it is the return to Australia rather than the enforced removal from England to which I must direct my attention.b. I must consider what is likely to happen to the mother if she and the child return to Australia. This requires me to consider whether the likely effect on the mother’s mental health is sufficient to establish a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation and this in turn requires consideration of: i. The nature of the risk; ii. The likelihood of the risk materialising; and iii. The consequences for the child of the risk materialising.c. In assessing whether there is a grave risk I must consider the cumulative effect of the mother’s allegations.d. The more serious or significant the character of the risk, the lower the level of risk which might be properly qualified as “grave”.e. “Intolerability” means a situation that a particular child in the particular circumstances of the case should not be expected to tolerate.f. I should assume that, unless the contrary is proven, the authorities in Australia are equally adept in protecting children as the authorities are here.[58]The mother’s allegations of domestic abuse, taken at their highest, would not in my view, by themselves, be capable of founding an Art 13b defence because I am satisfied that any risk posed by this reported history of domestic abuse could be ameliorated by the protective measures offered by the father. They do however provide significant context for the fears and anxieties that this mother clearly has about a return to Australia. Whilst I cannot, and do not, make any factual findings in respect of these domestic abuse allegations given the summary nature of these proceedings, I observe that the allegations now made by the mother are consistent with the reports that she made to the Australian psychologist between December 2023 and October 2024 and to the Australian Police in November 2024. The snippets of conversations that the mother has disclosed, whilst no context has been provided, are also consistent with the pattern of behaviour alleged.[59]In any event it seems clear that the mother has a subjective fear of a return to Australia and this is impacting both her physical and mental health. These two strands are clearly closely intertwined and I accept:a. That the mother’s stress and fear about the proceedings and a return to Australia are currently affecting her mental health.b. Dr Ratnam’s diagnosis that the mother is currently suffering from moderate depression and generalised anxiety.c. There is a link between her mental and physical health in a number of ways: i. Depression and anxiety can cause the release of stress hormones which impact on glucose levels and makes them difficult to control; ii. The mother’s mental health is also impacting on her ability to manage her diabetes as her depression impacts on reduced appetite, missed medication, inconsistent blood monitoring, and a prompt response to physical warning signs. iii. There is the possibility of a feedback loop as persistently high blood sugars and fluctuations in blood sugar worsen symptoms of depression and poorly controlled diabetes can impact the effectiveness of antidepressants. iv. Together these have resulted in a significant number of admissions to hospital for DKA – four since March 2026. Whilst the recent deterioration in the mother’s mental and physical health has coincided with these proceedings, I do not consider this to be tactical on her behalf or that she has falsely reported her symptoms. I note that Dr Ratnam considered the mother’s account of her history to be credible and that these proceedings and the consequent fear of being ordered to return to Australia will undoubtedly have placed the mother under significant stress.[60]Turning then to consider the situation that the mother and child would face on a return to Australia. They would be returning to a country with which the mother was familiar and in which she would have a right to work and to receive benefits. She would be provided with sufficient funds to accommodate herself and to maintain herself and the child pending any hearing before the Australian courts at which the issue of a greater amount of maintenance could be considered. I accept that from a practical and financial perspective many of the mother’s and child’s needs would be met. The heart of the issue is the effect that the return would have on(a) the mother’s health and(b) her consequent ability to parent the child. These two matters although distinct, are in the light of Dr Ratnam’s evidence, inextricably linked.[61]Dr Ratnam’s evidence, which I accept, is that a return would give rise to a significant risk of a significant deterioration in the mother’s mental health; that is to say that she considers that both the risk and the likely deterioration that would be caused if the risk came to pass would be “significant”.[62]Dr Ratnam is sufficiently concerned by the mother’s presentation that she considered that if I were to make a return order the mother should be immediately referred for NHS support because of the risk to self, including suicidal ideation, and identified the need for a range of follow-up medical appointments to be arranged in Australia in advance of a return. Given this need for follow-up support in Australia, I consider that this is a concern that does not just relate to the risks posed by an enforced removal, but also extends to the risk of the return too.[63]What then would be the consequences to the child of a deterioration in the mother’s mental health? Dr Ratnam describes that any deterioration and increase in the mother’s depression would increase the frequency of the episodes of dissociation that she is already experiencing and will affect her emotional availability for the child. There is thus a clear causal link between deterioration in the mother’s mental health and deterioration in her ability to parent the child.[64]This is a child that has spent his entire life to date with his mother. She has been his primary carer throughout that period and apart from the times that the mother has been admitted to hospital, he has not spent a night apart from her. Their bond is undoubtedly an extremely close one; for example, the medical records for the mother’s admission to hospital on 22/23 March 2026 record that the child was distressed when separated from the mother and Dr Ratnam records that panic attacks and dissociation have impacted on the mother’s ability to respond to the child which has led to frustration and distress on his part. I consider that this lack of emotional availability and the mother’s ability to effectively parent the child is not a minor risk, but rather it goes to the heart of whether a secure environment can be provided for this particular child if he is returned to a country that he left when only a few months old.[65]According to Dr Ratnam both the risk and the deterioration in the mother’s mental health in the event of a return are likely to be “significant”. In consequence I am also satisfied that the corresponding risk of an increase in dissociation and a deterioration in the mother’s emotional availability for the child can be similarly categorised and that when the likelihood and the gravity of that risk are assessed alongside each other they amount to a “grave risk” for the purposes of Art 13b. I am equally satisfied that this is something which a child such as this, who has hitherto enjoyed such a close bond with his mother, should not be expected to tolerate, and which would be likely to cause significant distress.[66]I have had careful regard to the arguments made by Mr Gupta and Mr Evans on behalf of the father and to the protective measures and other circumstances that would be available to the mother on a return. I recognise that there would be excellent medical care available to the mother in Australia, and I am satisfied that one way or another (whether through continued NHS provision, Australian public Medicare or private provision by the father) the mother would have available to her appropriate medication to manage her diabetes. However, I am satisfied from Dr Ratnam’s evidence that the current difficulties with the mother’s management of her diabetes, do not stem from the lack of an appropriate drug regime, but from an inability on her part to take proper care of this as a consequence of her depression and anxiety.[67]Whilst good mental health services would be available in Australia to assist the mother on a return, Dr Ratnam points to the lack of any significant improvement in the mother’s current condition notwithstanding the fact that she is currently on the highest possible dose of her prescribed anti-depressant. Crucially, her report is clear that the proposed protective measures “would be unlikely to prevent a further deterioration in her mental health if she were returned to an environment that she experiences as unsafe”. Dr Ratnam is also clear that although continued proceedings in this jurisdiction or Spain will still be stressful for the mother, because she will not be in a place that she perceives as unsafe, the risks of a deterioration in her condition will be correspondingly lower, and she also has more family members available to provide support for her in Europe.[68]In these circumstances I accept Dr Ratnam’s evidence that this is a case where ultimately the risks are such that they cannot be ameliorated by any protective measures. I also do not consider that the alternative proposals put forward by Mr Gupta (such as the father or his family providing care for the child if the mother is emotionally unavailable) takes matters further; the reality of the current situation is that the mother has been the child’s sole carer for the past two years and it is her lack of emotional availability that presents the risk to the child. If for whatever reason it became necessary to find an alternative person to care for the child, I have no doubt that the Australian authorities would be able to make appropriate arrangements to ensure that the child was being looked after in a safe environment (although whether this could be by the father may first require an in depth consideration of the allegations of domestic abuse against him). However, it does not answer the question as to whether the child should be expected to tolerate being separated from his mother as a result of a deterioration in her mental condition and her ability to parent him.[69]I am therefore satisfied that the mother has made out her defence that there is a grave risk that a return to Australia that would expose him to psychological harm or otherwise place him in an intolerable situation and I decline to order a summary return.[70]For the reasons that I have given I will dismiss this application and will hear counsel on what further orders I should now make.