A mother who took her son to England without court permission has been ordered to return him to Australia so that he can be close to his father.

The mother had moved to Australia from England in 2002. While there, she had an eight-year relationship with the father. They separated in 2014 and began litigation over the son they had together.

In 2016, the Australian court approved a consent order under which the boy lived with the mother but had extensive time staying with the father and three older half-brothers.

The mother could take him outside Australia only on giving at least six weeks’ notice to the father and providing details of the travel.

In 2018 the mother married a man who lived in England, and in 2019 she applied to the Australian court for permission to permanently relocate the boy to England so that they could both live with her husband.

That application was still ongoing in July 2020 when the mother secretly removed him to England. She claimed that he was being bullied and mistreated by the father and brothers and she was anxious to remove him for his own protection.

The father applied to the Family Court to have the boy returned under the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The mother submitted that the court should refuse the application as the boy was at risk of harm from the father and brothers and had long suffered anxiety as a result. She further submitted that she also suffered anxiety as her mother and sister had left Australia and she could no longer cope there, which also created an intolerable situation for her son.

The court ruled in favour of the father. It held that the mother had failed to meet the high threshold needed for establishing that there was a grave risk that return of the boy would expose him to physical or psychological harm or otherwise place him in an intolerable situation.

The boy had been close to the father and brothers and would be far better off being reunited with them until the Australian court determined the mother’s relocation application.

The policy of the Hague Convention was to swiftly return children who were wrongfully removed from the country of their habitual residence, and for their home country to determine any dispute about where they should live.

The mother should not profit from her wrongful actions unless there was a constellation of factors militating towards the child benefiting from staying in the UK, which was not the case.

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Case Citations: [2020] EWHC 3138 (Fam) B v A (2020) Fam Div (Teertha Gupta QC)

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