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Child abduction ruling 'failed to appreciate' mother's fears, Supreme Court says

14 March 2012

The Supreme Court has launched a stinging attack on a Court of Appeal child abduction ruling, which Lord Wilson said “failed to appreciate” that the mother’s fears rested on “much more than disputed allegations”.

The case involved a British mother who had taken her two-year-old son, referred to as W, from their home in Australia without the father’s consent or the permission of the courts.

The mother made a “large number of serious allegations” against the father but it was agreed that “the father’s grave financial problems led to serious alcohol and drug relapses on his part”.

Nevertheless, the Court of Appeal ordered the mother to return W to Australia under article 12 of the Hague Convention.

Delivering judgment on behalf of the Supreme Court in In the Matter of S [2012] UKSC 10, Lord Wilson said “hard pressed” appeal judges had made an “entirely inadequate address” of the mother’s case.

“Instead they treated the foundation of her defence as being merely her subjective perception of risks which might lack any foundation in reality.”

Lord Wilson referred to the court’s ruling in In re E [2011] UKSC 27, the leading judgment on article 13(b) of the Hague Convention, and said the “critical question” was what would happen if mother and child were returned to Australia.

“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,” Lord Wilson said.

“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.”

Lord Wilson said there was no reference in Thorpe LJ’s Court of Appeal judgment to the father’s descent into alcohol abuse and “descent back” into drug abuse or his contemplation of suicide.

He said the court below had in the same way paid “scant regard to the unusually powerful nature of the medical evidence about the mother, in particular of her receipt of regular psychotherapy while in Australia”.

The Supreme Court allowed the mother’s appeal.

In a postscript to the judgment, Lord Wilson said a decision of the European Court of Human Rights in December, X v Latvia (application no.27853/09), had “unfortunately reiterated” a suggestion that there should be an “in-depth examination” of the whole family situation before courts made decisions in Hague Convention cases to avoid infringing article 8 of the ECHR.

Lord Wilson said that “with the utmost respect to our colleagues in Strasbourg” the court reiterated its conviction “that neither the Hague Convention nor, surely, article 8 of the European Convention requires the court which determines an application under the former to conduct an in-depth examination of the sort described. Indeed it would be entirely inappropriate.”

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