The mother had abducted her two-year-old son after her relationship with the father broke down. She said the father had a problem with alcohol and drug abuse, and had been violent and threatening towards her.
She provided evidence from a psychologist saying that she suffered from chronic
anxiety, which would be likely to cause clinical depression and diminish her secure attachment to her son if she were forced to return to Australia.
However, the Court of Appeal stated that her subjective perception of the risks involve in returning to Australia was not sufficient grounds for allowing her to keep her son in the UK. It ordered that the boy be returned to Australia.
That decision has now been overturned by the Supreme Court. Giving the lead
judgment, Lord Wilson said that the Court of Appeal had
made an “entirely inadequate address” of the mother’s case.
He said: “Instead, they treated the foundation of her defence as being merely her subjective perception of risks which might lack any foundation in reality.”
This was in spite of the fact that the mother’s case rested on “much more than disputed allegations”.
In fact, it was agreed that “the father’s grave financial problems led to serious alcohol and drug relapses on his part”.
Lord Wilson said the critical question was what would happen if the mother were ordered to return her son to Australia.
“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 t
he 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.”
The court allowed the mother’s appeal against having to return her son.
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