Posted by Kim Moules, Solicitor
Application by Father for return of child to Australia. Article 13(b) defence established and return refused
International child abduction is rarely successfully defended and most cases before the High Court result in the child being ordered to return to the country from which they were removed.
However, Kim Moules, a solicitor in the Wiltshire family team, recently achieved a successful outcome for a pregnant vulnerable mother who had fled Australia with her young child.
The burden to prove in defending international child abduction is high; Under Article 13(b) of the 1980 Hague Convention it must be shown that a return would pose a ‘grave risk’ of exposing the child to physical or psychological harm, or otherwise place the child in an intolerable situation. The Court would normally take the view that any defence of risk posed from domestic abuse (and most other issues) can be overcome by protective assurances put in place on behalf of the applicant, which would be enforceable in the jurisdiction of the country to which the child is to be returned.
In this case, the Mother had only been resident in Australia for two years before she left with the child whilst pregnant with the parties’ second child. The Mother left without the knowledge or consent of the Applicant Father due to, what she argued was, coercive and controlling behaviour by the Father towards her. The mother was particularly vulnerable due to being deaf and a relatively new parent.
Royds Withy King managed to successfully ensure police records from Australia were filed in the case that exposed the father’s criminal record of serious sexual offences against a vulnerable individual, for which he received a custodial sentence. That, along with a detailed statement about the behaviour the mother was exposed to prior to fleeing, proved that the child would be at risk if ordered to return to Australia. An application on behalf of the mother to give evidence in person was refused and the Mother’s defence was therefore based on the statement prepared by Royds Withy King and submissions to the court by Mother’s Counsel, Patrick Paisley of 1GC.
The court noted that in common with the complainant in the father’s criminal case, this mother faced physical challenges which generated a degree of vulnerability and some facts of this case resonated with the father’s criminal trial. Mr Justice Hayden therefore concluded that he was satisfied that the evidence established a grave risk of serious harm to a child.
The father offered assurances such as a non-molestation undertaking as well as an undertaking not to cooperate with a prosecution or to seek to separate the children from their mother however the court found that no protective measures would be sufficiently robust enough to adequately ensure the child would not be at risk.
The court found that the most effective protective measure would be the now, very considerable, distance between the mother and father and therefore did not order the child’s return to Australia.
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