The mother appealed against an order confirmed by the Court of Appeal for the return of her child to Australia. The mother and father had cohabited in Sydney, before M returned with S without F’s consent or the permission of an Australian court. The court had found that M faced significant risk of abuse from F if she returned to Australia.
Held: Her appeal succeeded. The Judge had found that a number of the serious allegations by the morther against the father were true. It was not necessary therefore to assess whether her anxieties were objectively based. The judgment as to the level of risk had been one for the judge at first instance, and should not have been overturned unless, whether by reference to the law or to the evidence, it had not been open to the judge to make it The judge had been entitled to hold that the interim protective measures offered by the father in the event of a return to Australia did not obviate the grave risk to W and it was not open to the Court of Appeal to substitute its contrary view.
Suggestions in the ECHR that an in depth examination was always required in order to satisfy the parties Article 8 rights went too far.
Lord Phillips, President, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson
[2012] UKSC 10, [2012] 2 WLR 721, UKSC 2011/0265, [2012] 2 All ER 603, [2012] 1 FCR 493, [2012] WLR(D) 78, [2012] 2 FLR 442, [2012] Fam Law 639
Bailii, Bailii Summary, SC Summary, SC
Child Abduction and Custody Act 1985, European Convention on Human Rights 8
England and Wales
Citing:
Appeal from – S v C CA 2-Dec-2011
The father appealed against the refusal of an order for the return of a child, the mother having brought her here from Australia against the father’s wishes.
Held: The appeal succeeded. The crucial question as being whether the mother’s . .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Doubted – Neulinger And Shuruk v Switzerland ECHR 6-Jul-2010
(Grand Chamber) The Swiss Court had rejected the claimant mother’s claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him . .
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Cited – X v Latvia ECHR 13-Dec-2011
. .
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Lists of cited by and citing cases may be incomplete.
Children, Human Rights
Updated: 11 November 2021; Ref: scu.452131
