Abduction and the Subjective Anxiety of the Mother
Family and Children
In the case of Re S (a child) (international abduction: subjective fear of risk), a mother won her appeal against having to return to Australia with her child.
The mother was born in Britain but had Australian citizenship. The father was Australian. The couple moved in together in 2008 and had a child in 2009. The father was a reformed heroin addict – a fact the mother was aware of. The couple never married. During the time of the pregnancy the father’s business collapsed. He accrued massive debts and stopped contributing to the household and spiralled back to drug and alcohol abuse. After the child was born the mother found her partner injecting himself with drugs. After calling the police she was granted the Australian equivalent of a non-molestation order. The mother then decided to return to the UK with the child. However, due to the nature of this return it constituted child abduction under the Hague Convention.
The father issued an application in the High Court for the child to be returned to Australia. The mother argued that returning to Australia would cause her psychological harm and therefore create an intolerable environment for the child. The mother had a history of psychiatric problems (anxiety and depression) for which she received continuing counselling for. Her psychiatric report suggested she was suffering from a form of post traumatic stress disorder whilst in Australia. The court, taking this into consideration, ruled that the mother did not have to return with the child to Australia.
The husband appealed. The Court of Appeal gave little weight to the medical reports instead focusing on article 12 of the Hague Convention and ruled that the mother should return to Australia with the child. The mother then also appealed.
The critical question the court examined was ‘What would happen if, with the mother, the child was returned?’
The court ruled that forcing the mother to return would cause her anxiety and stress which would create a situation that was intolerable for the child. It did not matter if the mother’s anxieties were reasonable or not. The appeal would be allowed and the decision of the High Court would be restored.
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