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The parents met in Australia in 2021. The mother was British by birth but had lived in Australia since 2016 and had acquired Australian citizenship. The father was an Australian citizen.  They had a child in 2022 who had had dual British and Australian nationality. 

The parents gave different accounts about the nature of the relationship and the extent to which it was characterised by physical and emotional abuse of the mother by the father. What is not disputed is that there was an incident at Christmas 2023 in which the police were called and what is described as a “Police Protection Notice” was issued against the father. In February 2024, a Domestic Violence Protection Order (“DVPO”) was made. The order was made by consent, and without the father making any admissions as to his conduct.

Following the Christmas incident the parents separated and the father moved out of the property that he and the mother were jointly renting. A joint parenting agreement was reached with the mother being the primary carer and the father having the child every other weekend. The father also agreed to pay child support which has been deducted at source from his income.

In November 2023 the father had agreed in principle to the mother and child travelling to the UK for two or three months, although no formal written consent was given. He later told the mother he no longer felt comfortable with the travel. 

The mother and child travelled to the UK earlier than planned in February 2024. She later informed the father she intended to remain there permanently.

The father made an application under the 1980 Hague Convention for the return of the children to Australia. The mother argues that the Article 13(1)(a) and 13(1)(b) exceptions to return applied. 

Return refused, there was a grave risk of harm to the child if returned to Australia, within the meaning of Article 13(1)(b). The undertakings and protective measures offered by the father did not adequately protect the child against the identified risks.

Acquiescence - Art. 13(1)(a)

The mother argued that the father acquiesced to the child remaining in the UK as he was aware of his rights under the 1980 Hague Convention but had failed to act and, in an email exchange, appeared to want to cut all contact until 2029. However, the judge found that this did not amount to acquiescence within the meaning of Article 13(1)(a) as the email exchange came at a time where the parties discussed the child staying in the UK for just 4-6 weeks and also during an emotional moment when the Australian State court had just made a Domestic Violence Protection Order.  Additionally, the father’s later silence and inaction was not enough to make a finding of acquiescence. 

Grave Risk - Art. 13(1)(b)

The Judge found that there was a significant degree of dispute about the nature of the parents’ relationship. As these were summary proceedings he was not in the position to engage in a detailed fact-finding exercise and instead must assess the risk to the child if the allegations made were true, unless he could confidently discount the possibility that the allegations would give rise to such a risk.

In this case, although there was a degree of dispute about specifics of various incidents, there was sufficient evidence that the Judge was not able to confidently discount the possibility that on a return the mother and child would be at risk of domestic abuse and controlling behaviour.

The psychologist’s report further confirmed that the mother had genuinely held fears about returning to Australia and that a forced return would cause a significant deterioration in her mental health. Additionally the maternal grandmother’s terminal cancer diagnosis meant that a return order would pose additional risks to the child, both from a possible further deterioration in the mother’s mental health.

The Judge held that, taking all of these matters into account there is a grave risk that a return to Australia would expose the child to physical or psychological harm or otherwise place him in an intolerable situation, unless protective measures were put in place.

Issues Relating to Return

In light of the finding above, the Judge considered the protective measures offered by the father (not pursuing civil or criminal proceedings against the mother in relation to the abduction; not attending the airport on the mother’s return; not going within 200m of the mother’s address (save by agreement for contact); offering accommodation at the house of a friend or relative;and without admissions, not to use or threaten violence against the mother or harass or pester her). The Judge concluded that these measures did not adequately protect the child against the identified risks.

The Judge highlighted that this did not create a barrier preventing a parent who could not afford to pay for accommodation from obtaining a return order. In other cases an offer of accommodation from a friend or relative might suffice to remove the risks to the child. However, in this case the accommodation offered by the father, the limited financial support that he proposes or the need for the mother to obtain and rely on state benefits are not adequate to meet the risks.