An estranged British couple’s dispute over the care of their two-year-old son has prompted a warning over international child abduction rules from experts at a regional law firm.
Ellis Jones Solicitors, with offices in London, Hampshire and Dorset, acted for the mother after she retained the child in England during a holiday from Australia, where the family had been living with working visa rights, without the father’s consent.
When he applied to the Australian authorities to force them to return, she claimed going back there would pose a ‘grave risk’ of physical or psychological harm to her and the boy.
She said the couple’s relationship deteriorated after the father had lost his job and they had separated when she witnessed him misusing illegal drugs in the boy’s presence. She also cited ‘verbal, emotional and financial abuse’.
The case, heard in the Family Division of the High Court in London, centred on Article 13(b) of the 1980 Hague Convention, a treaty designed to protect children from the harmful effects of wrongful removal or retention across borders.
As respondent in the case, the mother cited the potential risk of domestic abuse by the father and deterioration of her own mental health if required to return. But the unique part of her case was the uncertainty over her visa and immigration status in Australia, which she said could result in separation from her son, placing him in an ‘intolerable situation’.
While the court accepted these were ‘serious issues’, it found that the legal test of ‘grave risk’ under Article 13(b) was not met and therefore ordered the child’s return to Australia.
The return order was made subject to rigorous protective measures, including independent accommodation for the mother and child, financial support and private medical cover. The judge also found that the mother’s concerns over her immigration position could be appropriately dealt with in Australia before her working visa there expires in 2029.
Georgina Emerson, London-based Senior Associate Solicitor in Ellis Jones’ Family Law Department, who acted on a pro bono basis, said:
“The courts do take a strict approach to abide by the Convention, and the bar for an Article 13(b) defence is very high, but nevertheless this case was interesting due to its unique set of facts and immigration issues. I have never had a case where all parties are UK nationals being returned to a country they only have a temporary right to reside in. The mother’s right was reliant on a visa that was at risk of cancellation due to the parties no longer being in a de facto relationship. The judge had a lot to grapple with. The court clearly took the view that the risks posed to the mother could be safely managed through protective measures.”
Georgina added: “It is a cautionary reminder of the importance of taking legal advice before removing a child out of a country. Any parents in similar cross-border disputes absolutely need to understand the law and rules around relocating a child to a different country and the stability of their immigration status in each jurisdiction."
“We now live in an age, post-Brexit, where some families are increasingly reliant on visas, and immigration uncertainty may rear its head more frequently in cases involving child abduction. If any parent wishes to relocate their children to another country, I strongly urge them to seek expert legal advice prior to any move, as this case is a reminder of the court’s strict adherence to the Hague Convention. The UK court takes its obligations under the convention very seriously and, rightly or wrongly, will return children who have been wrongfully removed from their home country provided sufficient protective measures are in place.”
