News
Mental Health and ‘Grave Risk of Harm’ to a Child in International Relocation Cases: F v M [2024] EWHC 1887 (Fam) (23 July 2024)
This case concerned an application by a Father for summary return of the child to New Zealand.
The application was heard by Peel J and the facts were that the family had decided to emigrate to New Zealand in February 2023 after living in England for 19 years. The Mother and one of the children, X, appeared to not be keen on the idea, but nevertheless the entire family arrived in New Zealand on 2nd November 2023. The Mother had to purchase a return ticket, having entered the country on a visitor visa. Upon moving to New Zealand, the family moved in with the child’s Paternal Grandparents (PGPs), and, unfortunately the situation quickly became untenable. Mother and Father separated around two week after their arrival. An agreement was reached for the Mother to ultimately leave the PGPs’ home on 8th December 2023. The children remained with the Father. On 17th December, Mother attended Father’s property, removed X’s passport. X went with her. On 18th December, the Father made an ex parte application to prevent the Mother from leaving with X, however the Court did not make the order on an ex parte basis and listed the application for a hearing on 22nd December. The Mother flew back to England with X on 19th December. The other child, Z, remained in New Zealand with the Father.
There were concurrent proceedings taking place in New Zealand in which an interim parenting order (similar to a Child Arrangements ‘Lives With’ Order) was made in favour of the Father and an order for Mother to have supervised contact with the children.
Law
The Court directed itself on the summary of the law surrounding habitual residence as set out by Hayden J at para 17 of Re B (A Child)(Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam) and Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) 2020 EWCA Civ 1105.
Habitual residence does not require full integration but only a degree of it (per Lord Wilson in Re B [2016] AC 606), and how quickly one gains or loses habitual residence into is a matter of fact and degree (per Baroness Hale in Re LC (Children International Abduction: Child’s Objections to return) [2014] UKSC 1).
In this case the Court also had to be concerned with the state of the Mother’s mental health, and the child’s own objections, which engaged the application of Article 13(b) Hague Convention for the Court to determine whether there would be a grave risk of harm or intolerability should the child be returned. In Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, it was outlined that:
“If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother's anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned.” (per Lord Wilson at para 34).
Analysis
The Mother relied upon the grave risk of harm to the child, and also that the child objected. The Court’s evaluation of the information provided by the Cafcass officer makes interesting reading, but to keep this summary short, it suffices to say that while X had a wish to remain living with his Mother, it did not amount to an objection to living in New Zealand.
In determining the grave risk of harm, the Mother relied upon her own mental state and the Court directed expert evidence be obtained on that matter. In allowing the Mother’s defence on this point, the Court stated:
“What is far more significant, in my judgment, is M’s own perceptions, recollections and personal experiences, which are acutely negative. What counts is what M internally felt and experienced. It does not matter greatly for these purposes whether it was caused directly by F or whether it was, as I consider likely, an accumulation of factors, including family conflict and isolation which contributed to, and exacerbated, her mental health issues. As a result, her coping mechanisms were placed under enormous strain, and she reacted erratically. It is quite likely that F did not appreciate the impact on M of the time in New Zealand, but I am satisfied, looking at the evidence in the round, that it had a seriously detrimental effect on her. She was vulnerable when she went, and in a very short space of time was experiencing a very high degree of trauma triggered by the circumstances of the move to New Zealand. It is probable that X was aware, consciously or subconsciously, of these events, and, being so close to M, he too was affected.” (para 37, emphasis added)
Taking into account the impact on X of seeing his Mother affected in such a way, the Court declined to order that X be returned to England. However, it is clear that such arguments must be backed up by medical expert evidence, in order for the Court to draw such conclusions.
