The Court of Appeal has overturned a decision that a mother must return her abducted son to Australia, ruling that her mental health must stabilise before any such order is made. 

Case Background 

The case involves a 31-year-old British woman and her six-year-old son. The father, an Australian, began a relationship with the mother in 2015, and they lived together in Australia. The mother, who has a history of chronic mental health issues, saw her condition worsen after discovering in October 2019 that the father had been having an affair throughout their relationship. 

Following their separation, the mother and her sons remained in the family home. In April 2020, she attempted suicide and was hospitalised for five weeks, where she was diagnosed with adjustment disorder with depression and anxiety, as well as ADHD. 

Abduction and Legal Proceedings 

In November 2020, the mother left Australia with her children without informing the father, and they have been living in England since. The father applied under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for his son’s return. 

The mother alleged physical abuse, controlling behaviour by the father, and the adverse impact of returning to Australia on her mental health. A psychiatric report supported the claim that returning to Australia would negatively affect her mental health and highlighted the importance of stabilising her condition before any such move. 

Court Decisions 

Initially, the judge granted the father’s application, reasoning that professional support available in Australia would be sufficient to safeguard the mother’s mental health. However, the Court of Appeal overturned this decision, emphasizing that the psychiatric evidence indicated the mother’s mental health needed to stabilise first. 

The appeal court held that the protective measures in Australia would not sufficiently mitigate the risk of grave harm to the mother. Additionally, the potential impact on the son from being separated from his older brother provided further grounds against the return. 

Legal Implications 

This case underscores the importance of considering the mental health and wellbeing of parents in international child abduction cases. It also highlights the Court of Appeal’s recognition of the interconnectedness of family members’ wellbeing and the potential long-term impacts on children.