B (A Child Abduction Article 13(B)) – Family Law Week case summary

September 1, 2020

A deputy High Court judge’s refusal to set aside a return order made under the 1980 Hague Convention was successfully appealed. The Court of Appeal found that the Article 13(b) threshold of grave risk of harm or intolerability was met, determining that this was a case in which permission should have been given for further medical evidence to be obtained when the mother first applied.

Background

The mother is both a British and Bosnian national, living in England. The father is a Bosnian national and has always lived in Bosnia. The mother and father married in Bosnia in September 2010. The child was born in England in February 2017. Shortly after, the family returned to Bosnia in stages. The mother then took several trips to England alone, leaving the child with his father in Bosnia, and for a few months between November 2017 and February 2018, the whole family was together in England. From October 2017 to January 2019, the mother reported several incidents to the police and the British Embassy in Sarajevo of the father being violent and controlling to her. On 27 January 2019, a restraining order was made against the father by a court in Sarajevo. In February 2019, the mother then returned with the child to England without informing the father.

Multiple proceedings were issued by each parent in Bosnia and England including criminal, wardship, divorce, and for the purposes of this appeal, the father’s application of 19 June 2019 under the 1980 Hague Child Abduction Convention for the summary return of the child to Bosnia. The mother’s opposition to the application included, amongst other grounds, an argument that the threshold of grave risk of harm or intolerability was crossed for the purpose of Article 13(b). Before making the return order on 25 September 2019, Deirdre Fottrell QC, sitting as a deputy High Court judge, rejected for a second time the mother’s renewed application for instruction of a psychiatrist, first made in August 2019. Ms Fottrell QC subsequently made a return order, based in part on undertakings by the father, and concluded that “the medical evidence does not meet the threshold of grave risk of intolerable harm to [the child] occurring as a result of the impact of any such return on the mother’s mental health and consequently on [the child]” (para 18).

Read the full summary on Family Law Week.