Mother with mental health issues can keep her son with her
A mother with mental health issues has won her appeal against a court order requiring her to return to Bosnia with her three-year-old son so he could be close to his father.
The mother had dual British and Bosnian nationality, and the father was a Bosnian national. They married in 2010 and lived together on and off in both the UK and Bosnia. Their son was born in the UK in 2017.
The mother had longstanding mental health problems and complained that the father was violent towards her. In 2019, after the father was arrested in Bosnia for beating her, the mother moved to the UK with their son.
In September 2019 the father obtained a Hague Convention order for the child's return, giving an undertaking that he would not seek to separate the child from the mother upon their return.
However, he breached that undertaking by obtaining an order from a tribunal in Bosnia that the child should live with him. The mother applied to set aside the return order on the basis that there had been a material change of circumstances within the meaning of the Family Procedure Rules 2010.
She claimed that she would be unable to cope if required to return to Bosnia, and provided psychiatric evidence showing that a return would cause a significant deterioration in her mental health.
She relied on the defence in art.13(b) of the Convention, arguing that forcing her to return to Bosnia would expose the child to a grave risk of harm and place him in an intolerable situation.
The judge declined to set aside the order. She held that although the father had breached his undertaking he had not acted in bad faith, and that the mother's conclusion that she could not return to Bosnia was her choice.
The Court of Appeal has overturned that decision. It held that the psychiatric evidence established that the mother's mental health was likely to significantly deteriorate if she were to return to Bosnia.
The mother's conclusion that she could not cope if she were to return was understandable and was not a choice. Thus, the father's breach of his undertaking, the psychiatric evidence, and the mother's decision that she could not return were fundamental developments justifying setting aside the return order.
There was a grave risk of the child being placed in an intolerable situation based on the potential deterioration in the mother's mental health if she were to return to Bosnia. The return order would therefore be set aside.
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Case Citations:  EWCA Civ 1057RE B (A CHILD) (ABDUCTION: ARTICLE 13(B)), (2020) CA (Civ Div) (Moylan LJ, Peter Jackson LJ, Carr LJ)
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