ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
MS KATIE GOLLOP KC SITTING AS A DEPUTY HIGH COURT JUDGE
FD24P00117
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LEWIS
and
LORD JUSTICE JEREMY BAKER
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Re: B (A Child) (Abduction: Article 13(b): Mental Health) |
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Teertha Gupta KC, Indu Kumar and Nadia Campbell-Brunton (instructed by MSB Solicitors) for the Respondent
Hearing date: 26 November 2024
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Crown Copyright ©
Lord Justice Moylan:
"(a) The judge was wrong to elevate the concerns and opinions of Dr Ratnam to conclude the mother was at risk of such a deterioration in her mental health so as not to be emotionally and physically available for A, to the requisite threshold of a grave risk of harm or intolerable situation.
(b) The judge was wrong to find the undertakings and protective measures did not sufficiently ameliorate the mother's Art 13(b) defence, particularly given the long-standing nature of her mental health and her ability to live independently in Australia for 13 years.
(c) The judge was wrong to find that the mother's condition could only be supported by her immediate family, ignoring the close and supportive relationships the mother had in Australia and the range of support services the mother had accessed in Australia which continue to be available.
(d) The judge was wrong in not evaluating the support the father could and would offer in Australia in the care of A despite the fact the parents were now separated. This failure includes the failure to recognise the inability of the father to travel to England having been refused a UK visa."
Background
"7. The mother has a long history of mental ill health. The father thought it was of about five years' duration but in fact it goes back much further than that with GP records documenting symptoms of depression and anxiety since about age 15 years. The mother's own mother describes her as someone who has always been "a people pleaser" and who became anxious and worried if she felt approval being withheld. However, it seems that the mother has also always been an enterprising and independent person: from the age of 14 she has had a job as a hairdresser and she is qualified to teach hairdressing. She decided to travel to Australia alone and has always been self-supporting there.
8. Life so far from her family was not always easy and for some years in Australia she was alcohol dependent. From April 2019 she received therapy from a psychologist and she had medication prescribed by her GP. At the end of 2019 she attempted to take her own life whilst intoxicated and was admitted to hospital. She flew to England and recuperated with the care and love of her family. She gave up drinking and was able to rent her own flat, build her own business as a hairdresser, work a second job as a carer for people with mental health difficulties and disabilities, and maintain close friendships and a good support network."
"The mother experienced a mental health crisis characterised by panic and overwhelming fear about the future for her and A in Australia. As she had done after self-harming in 2019, she felt a desperate need for the support of her family. She bought a plane ticket at lunchtime and flew out in the early evening. The maternal grandmother states that the mother immediately informed her that she had come home because she was worried the father would seek to rely on her mental health as a way of removing A from her. On 2 December, she phoned the father and told him that she and A were in England."
Proceedings
"It is therefore submitted that in all the circumstances and taking a holistic view of the matter, the mother's mental illness, the impact on the mother of a return to Australia, the lack of practical protective measures on the ground and the cumulative effect of the mother being stripped away from her familial support network, will make it intolerable for A to be returned to Australia and expose her to a grave risk of harm. It is axiomatic that it would be contrary to his best interests. It is submitted that the Court should exercise its discretion not to return this child summarily. The Mother and A have a large maternal support network here that cannot be replicated in Australia and the Father can no doubt reapply for a visiting visa or appeal his refusal on the grounds, the Court is reminded that he did not give full information in his original application … and this no doubt counted against him. Had he been allowed to visit then it is assumed this application would never have been made (6 months after the Mother and child left Australia)."
"24. The mother has clearly had a long standing mental health issue and depression. This did not prevent her travelling to Australia and remaining there for 13 years, where she had the insight to access GP and psychological services to support her and address her mental health.
25. Whilst in Australia, she accessed and attended all the support services Dr Ratnam is now advocating. She also continued to work, as she currently is in England. In fact the evidence demonstrates a certain robustness to the mother who has always managed independently in Australia.
26. As in any other case, where a return order is made to an objecting parent, that parent is likely to suffer an adverse impact on their mental health. However, whilst the return to Australia may be uncomfortable for the mother, it will be submitted that it does not amount to an intolerable situation or that as a consequence A would be at grave risk of harm."
Expert Evidence
"The GP notes refer to [the mother] having difficulty coping on 22 November 2023.
From [the mother's] account, her mental health has impacted upon her functioning and she reported that her mother supported her significantly in daily tasks. Most of her activities outside the home involve family members.
She has started working one day a week and although it helps distract her from her circumstances, she finds it difficult to concentrate."
When asked to "comment on the impact of any diagnosed condition or disorder on the mother's ability to parent the child", Dr Ratnam said:
"Depression can impact on a mother's emotional availability to a child due to preoccupation with negative thoughts. However [the mother] denied difficulties attending to [A's] emotional needs and the GP notes do not raise concerns regarding this.
It appears that she has significant practical support from her mother, which allows her to focus on [A]."
"What impact, if any, would a return to Australia have on the mother's (a) current mental health (b) future mental health and (c) ability to parent [A]."
She replied:
"It is likely that a return to Australia would impact adversely on [the mother's] current and future mental health. She was depressed at the time of assessment and reported passive suicidal thoughts with expressions of hopelessness should she return to Australia. She also reported symptoms of anxiety.
Whilst adequate treatment is available in Australia, other factors are also important in recovery and maintaining stability of mental health.
Social support is important in recovery and although [the mother] reported that she had some friends in Australia, she has a more extensive support system in the UK."
On-going stress, including relationship discord will impact adversely on recovery and can also be a relapse trigger.
She admitted that she had had thoughts of consuming alcohol twice, which were triggered by writing her statement and receiving [the father's] statement. Despite being in recovery, there is a possibility of [the mother] consuming alcohol as a coping strategy should her mood deteriorate further.
It is not possible to predict the extent of impact on parenting but as stated above depression can impact on the ability to emotionally and physically respond to a child consistently." (emphasis added)
"So she does have a history of suicidal ideation and thoughts of self-harm when depressed so they're – there is a risk of that. But what I would be concerned about particularly if there were further deterioration in [the mother's] mental health with a lack of significant support is the impact of that on parenting and the impact of depression on parenting".
Beyond expressing concern, Dr Ratnam did not expand on what the nature of that "impact" might be.
"whether the risk … of a deterioration in the mother's health on a return is going to pose a grave risk, not just a risk but a grave risk, to [A] or [whether] the risk of psychological deterioration in the mother's mental health is such that … there's a risk of [A] experiencing a situation which she shouldn't be asked to tolerate".
The judge then added:
"One of the answers that, I think the final answer that you gave to Mr Gupta was about suicidal ideation when depressed and you said that your concern was about a deterioration with no support and the impact on parenting. So can you tell me a little bit more about the future as you see it for [A] if the mother was asked to return with [A] to Australia":
"I think it really depends on what is put in place for mother should she return to Australia. So if the mother is to return to Australia with her mother as a form of support but that would be limited, the medication is optimised, that there is psychological support, those are some mitigating factors regarding further deterioration in her mental health. If I can (inaudible) it that might be that even in those circumstances she will [not] achieve a full remission from her mental health problems given that she's – that's not occurred whilst she's even been in this country and there's been ongoing support (inaudible). But her mental health has not affected her ability to respond emotionally to [A]. She's not presented as an emotional event trigger. She's been able to pick up on [A's] issues, at home [A's] emotional and day to day needs albeit with a lot of support regarding practical tasks such as cooking, shopping and washing. My concern would be if and when her mother leaves Australia and she is in Australia with a few friends but very little consistent support from what I could understand, and this is a mother who has a long history of mental health difficulties which dates back to her adolescence, so she is vulnerable to relapses. We know that individuals with (inaudible) episodes of depression the vulnerability – the risk of relapse can be between 70 and 90 per cent of depression. So there is a significant risk of deterioration or relapse. In that context and with ongoing stressors which might include court proceedings and there will be – it would be difficult to avoid [the father] for sure because they have a child together so that will be an ongoing part of [the mother's] life in this country and in Australia but it needs support structures around that and should her mental health deteriorate further which is likely to happen if she feels isolated with her past history of depression then there is a risk of her becoming emotional about [A] and [A's] experiences of a mother who is not able to consistently respond to her which can affect attachment with [A] although it's likely that [the father] will be a significant attachment factor – figure and so she will have that consistency. But for [A] having a mum who is not always emotionally available or emotionally distressed could impact on her own emotional wellbeing." (emphasis added)
In the last sentence I have emphasised, Dr Ratnam repeats what she said in her written report, namely that the deterioration in the mother's mental health "can" or "could" impact on A's own emotional wellbeing.
"the thing about psychiatry is that we're not a clear science so individuals' responses will vary. I think it's – whilst there might be some improvement in symptoms I think it is very unlikely that even with amelioration, sorry, even with augmentation there would be a complete resolution of symptoms."
Judgment
"the mother is convinced that she would not be able to cope on her own in Australia without in person support from her family there. The written evidence indicated that in the event of a return order being made, the plan was that the maternal grandmother would accompany the mother and A to Australia and stay for around a month before returning to England. During submissions, it was indicated that there had been a change. The grandparents have had to juggle their caring responsibilities and to accommodate these and other commitments, it was the grandfather who would fly out and he would be able to stay for around three weeks."
"32. Dr Ratnam's evidence was that currently, the mother fulfils the criteria for a diagnosis of recurrent depression, generalised anxiety and PTSD. A diagnosis of that last condition would depend on the trauma having occurred. If the nature of the relationship was as the mother had described, her experience of it could lead to symptoms of PTSD. The mother had been distressed when assessed. She reported feeling she would be under threat from the father in Australia. In her opinion, the mother's baseline was low, depression was impacting her ability to function, and she was only able to manage with significant help from her own mother, sisters, father and wider family. Upon leaving England, she would lose the familial support system on which she depends. In Dr Ratnam's view, a return to Australia in those circumstances would be a significant trigger for further deterioration in her mental health conditions.
33. She considered that the mother's medication could be optimised: the existing dose could be increased and another medication added. However, she explained that when a person is taking antidepressants and receiving therapy but continues to be subject to significant stressors, the treatment effect is limited. Dr Ratnam's opinion was that as the mother had not experienced remission whilst in England, remission in Australia was unlikely. Continuation of the present support provided by family members was very important to the prospects of recovery.
34. In response to questions from Mr Gupta, Dr Ratnam did not appear concerned that there was a significant risk of alcohol abuse recurring or repetition of suicidal ideation that would cause a risk of harm to A. The mother was four years into recovery from alcohol dependence and five years was considered advanced. A vulnerability remained but the mother had good insight into her mental health and could identify when she was tempted to have a drink. She would know how to manage those risks. Dr Ratnam was unable to predict the extent of the impact on the mother's parenting of A if her current depression and symptoms deteriorated, save to say that depression can impact on a parent's ability to respond to a child's emotional and physical needs consistently.
35. When asked about that further, she said that the impact on A would depend on the availability of support. If the mother returned to Australia with her own mother, medication was optimised, and psychotherapy was delivered, the risk of A coming to harm as a result of the mother's impaired mental health would be mitigated. The concern would increase if or when that in person family support was no longer available. If the mother then felt isolated, there was a risk of deterioration and her becoming emotionally remote and unable to respond to A. When Mr Jarman reminded Dr Ratnam that there was no evidence that the mother had ever been emotionally unavailable to A, her response was that in this case, the past was not a reliable guide to the future."
"I agree about the efficacy of the coping strategies the mother had put in place to manage her anxiety and recurrent depression between her arrival in Australia in 2013 and A's birth ten years later. I also agree with his assessment that during that decade she demonstrated considerable independence, drive and resilience and she functioned to a high level. I accept too that to date she has met all of A's needs and has not been unavailable to her emotionally. The submission I am unable to accept is that because she has managed her mental health symptoms well in Australia, the possibility, if she returns, of her not coping to an extent that exposes A to the risk of grave harm can be excluded with confidence."
"The suggestion that the issue of the extent of the effect on A of any deterioration in her mother's mental health must be a matter of speculation is not wholly wrong. A is not a child who has already been exposed to the situation that she will experience upon summary return because her mother has never lived alone with her in Australia for more than a few days. But what the 1980 Convention requires is an assessment of the future risks, whether or not they have already been run. In making that assessment, I have looked holistically at the mother's past prior to A's birth, her life with A to date, and the expert evidence."
"53. If the mother returns to Australia with A, for at least the first three months they will be adequately housed, will have enough money to live modestly, and the mother will have a car and access to medication, therapy and support to stay sober. For the first three weeks, she will have the live in support of a family member. After that, she will be on her own and in continuous sole charge of a 14 month old child, unless A goes to nursery two or three days a week which respite will depend on the mother's ability to earn.
54. At present, the mother is suffering from insomnia, weight loss, poor motivation, impaired ability to concentrate, and anxiety. It is highly foreseeable, if not likely, that all of these symptoms will worsen once she and A are living on their own in Australia. Dr Ratnam's evidence was that neither optimal medication nor therapy will provide remission for as long as maintaining stressors persist. Life in Australia will undoubtedly be difficult and tiring for the mother. At the moment she experiences a subjective sense of being under threat from the father which will be increased if she has to return to living in the same neighbourhood as him. Money will be in short supply and a source of worry. There will be welfare proceedings which she will have to manage whilst living alone. The continuing requirement to facilitate A's video contact with the father, which the mother already finds overwhelming, will be a recurrent trigger for anxiety which she will have to manage without help.
55. Dr Ratnam's view was that the risks of a relapse of alcohol dependence or binge drinking, and of a further attempt at serious self-harm were small, though she did not say nil. If either risk eventuated, the possibility of A coming to serious harm or being placed in an intolerable situation would be present. However, in my judgment, the greater grave risk is that of the mother not coping with daily life to the point that she is unable to provide safe care. There is a serious prospect of her losing more weight and becoming so depleted, exhausted, lacking in confidence as a parent, and overcome by anxiety and negative thoughts once her father goes home, that she is unable to meet A's daily needs whether physical, emotional, or social (the mother already finds it extremely difficult to go out with A without another adult present) so that the situation for the child is intolerable.
56. I also consider that there is a grave risk of the mother's mental health deteriorating to the point that she experiences a crisis. On the two occasions when that happened, she avoided a complete mental health breakdown by immediately flying to England to seek family help. In the event of an order for A's summary return, she has agreed to provide undertakings to lodge her passport with a lawyer and not to remove her. Therefore, if she has a further crisis in Australia, the mother will not be able to come back to England without leaving A behind. Separation of this very young child from her mother who has been a constant presence since birth would expose A to a grave risk of psychological harm. For the mother, knowing that once in Australia she cannot leave with A, even if psychologically paralysed or overwhelmed, is likely to exacerbate her feelings of threat and anxiety and increase the risk of the child of being placed in a situation of intolerability.
57. The protective measures offered by the father are necessary but not sufficient to address the Art 13(b) risks to A. What would ameliorate those risks, and in my judgment the only measure that would effectively prevent A from experiencing psychological harm or an intolerable situation, would be the presence of a family member living with or close to the mother for a period of months not weeks. Regrettably but understandably, that is not on offer. I do not lose sight of the fact that the mother has friends in Australia who knew A as a baby and who understand the history of the relationship from the mother's point of view. They would be likely to help but they have their own lives and one has moved away. They will not be able to replicate the significant support upon which the mother's safe care of A currently depends." (my emphasis)
Submissions
Law
"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."
"there is no need for the article to be "narrowly construed". By its very terms, it is of restricted application. The words of article 13 are quite plain and need no further elaboration or "gloss"."
They went on to explain the "level of seriousness" required to establish Article 13(b):
"[33] Second, the risk to the child must be "grave". It is not enough, as it is in other contexts such as asylum, that the risk be "real". It must have reached such a level of seriousness as to be characterised as "grave". Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm.
[34] Third, the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" (emphasis supplied). As was said in In re D [2007] 1 AC 619, para 52, "Intolerable" is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: e g, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.
[35] Fourth, article 13(b) is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home."
"made an entirely inadequate address of the mother's case. Instead they treated the foundation of her defence as being merely her subjective perception of risks which might lack any foundation in reality."
"this court considered the situation in which the anxieties of a respondent mother about a return with the child to the state of habitual residence were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child's situation would become intolerable. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk; and will, among other things, ask itself whether they can be dispelled. But in In re E it was this court's clear view that such anxieties could in principle found the defence. Thus, at para 34, it recorded, with approval, a concession by Mr Turner QC, who was counsel for the father in that case, that, if there was a grave risk that the child would be placed in an intolerable situation, "the source of it is irrelevant: e g, where a mother's subjective perception of events lead to a mental illness which could have intolerable consequences for the child". Furthermore, when, at para 49, the court turned its attention to the facts of that case, it said that it found
"no reason to doubt that the risk to the mother's mental health, whether it be the result of objective reality or of the mother's subjective perception of reality, or a combination of the two, is very real"."
This passage made clear the nature of the court's assessment. In that case, it was whether the mother's "anxieties" were "of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child's situation would become intolerable".
"The critical question is what will happen if, with the mother, the child is returned. 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."
"There is a connection between the nature of the risk and the assessment of whether it is a grave risk within the scope of Art 13(b). The more serious or significant the character of the risk, the lower the level of the risk which 'might properly be qualified as "grave"', and vice-versa."
The effect of this approach, as noted by Lewis LJ during the hearing, is that the court must assess the nature of the risk, the likelihood of the risk materialising and the consequences of the risk materialising for the child. In a case such as the present, for the purposes of determining whether the circumstances set out in Article 13(b) have been established, this will involve consideration of the nature or extent of any potential deterioration or relapse in the mother's mental health and the nature or extent of any potential impact on A.
Determination
"it is relevant to note the limited function of an appellate court … . Where the lower court has applied the correct legal principles to the relevant facts, its evaluation is not generally open to challenge unless the conclusion which it reached was not one which was reasonably open to it".
there is a risk of her becoming emotional about [A] and [A's] experiences of a mother who is not able to consistently respond to her which can affect attachment with [A] although it's likely that [the father] will be a significant attachment factor – figure and so she will have that consistency. But for [A] having a mum who is not always emotionally available or emotionally distressed could impact on her own emotional wellbeing." (emphasis added)
Dr Ratnam said that there was "a risk of [the mother] becoming emotional" and used the words "can" and "could" in respect of attachment with A and A's emotional wellbeing. These are, with respect, some distance from the judge's conclusions.
Conclusion
Lord Justice Lewis:
Lord Justice Jeremy Baker: