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The father was an Australian citizen and the mother a British national with permanent residency in Australia. Their relationship began in 2018 and they had a child the following year. The child had dual British and Australian citizenship.

The parents separated in June 2022. Until March 2023 the father had regular contact with the child. In June 2023 The mother ceased to permit, face-to-face contact. The mother contacted the father’s solicitors indicating a wish to relocate to England with the child. In October 2023, the mother submitted an application to the court in Australia, seeking permission to relocate. 

In April 2024, the mother took the child to the UK without the father's knowledge or consent and in breach of his rights of custody.

The father issued an application under the 1980 Hague Abduction Convention for the return of the child. 

The mother said she would not return to Australia and argued that there was a great risk of harm to the child, should he be returned.

Return ordered. The Judge did not accept that it was likely that the mother would not return with the child and therefore did not find any grave risk of harm or intolerability caused by separation from the mother. 

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

Though the mother asserted that she would not return to Australia in the event the return order was made, the Court held that, overall, it was unlikely that the mother’s fear of the father or of her mental health deteriorating were so great as to prevent her from returning to Australia with her son when it was clearly in his best interest. 

Therefore, the Court did not consider there to be a grave risk of harm within the meaning or Article 13(1)(b) by virtue of separation from the mother. 

Furthermore, even if the mother were to return to Australia with the child the Article 13(1)(b) exception would still not be made out as there were Orders in place and support available in Australia, which could mitigate the risk.