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RECENT CASE: Uhd v McKay [2019] EWHC 1239 (Fam)

There has been much media flurry in recent months around three-year-old Ruby, an Australian girl who went missing after she was taken to the UK, by her mother, where her mother is citizen. 

Last week, Ruby’s case came before the Family Division of the High Court in London to determine whether the Mother should be ordered to return Ruby to Australia. The Court found that Ruby’s case was a blatant and premeditated act of child abduction.

Where international child abduction occurs, the Hague Convention on the Civil Aspects of International Child Abduction applies. This multilateral treaty provides that the child must be ordered to return to his or her country of origin, unless a defence can be successfully raised.

One of the defences written into the Hague Convention is found in Article 13(b) which states:

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

b)   there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

In Ruby’s case, her Mother attempted to raise this defence before the Family Division of the High Court. She alleged that the Father had perpetrated family violence towards her, Ruby and Ruby’s half-brother, including physical, emotional and sexual violence, and financial control.

The Court was asked to consider whether there was a ‘grave risk’ or would otherwise be an ‘intolerable situation’, as required by the defence. In answering this question the Court looked to case law which provided the following:

  • The risk must be ‘grave’, a real risk is insufficient;
  • The ‘gravity’ relates to the risk not the harm, though there is necessarily a link between the two;
  • ‘Intolerable’ must mean “a situation in which this particular child in these particular circumstances should not be expected to tolerate”;
  • The Court’s concern must extend beyond the immediate future; and
  • The Court should assume the risk of harm is at its highest and if this meets the Article 13(b) defence, it should then consider protective measures.

Further, under case law, the subjective anxieties of the respondent mother may be sufficient to establish the defence. This will occur where it is likely the return of the child will destabilise her parenting to a point where the child’s situation would become intolerable. However, the Court noted there are three caveats to this:

  1. Court will look very critically at an assertion of intense anxieties not based upon objective risk;
  2. Court must consider evidence of whether there is objectively good cause to be anxious upon return; and
  3. Where anxieties not based upon objective risk, the Court will ask if those anxieties can be dispelled through protective measures.

Here, the Court considered the anxieties of the Mother who had made repeated allegations of family violence and brought numerous applications to the Australian Court, including for a series of Intervention Orders against the Father. However, the Mother’s allegations had not been founded in the Australian courts and the British High Court found no reason to depart from these conclusions. The Court considered the mother’s accounts were changeable and highly contradictory, and was left with the strong impression that she had sought to distort and misrepresent the facts in the case in order to fall within the Article 13(b) defence.

Further, the Father entered into a series of undertakings which would have the practical effect of reducing the Mother’s anxieties and were considered ample protective measures for the child.

The Court ultimately found that the objective level of risk was insufficient to raise the Article 13(b) defence and orders were made for Ruby’s immediate return to Australia.

 

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