• Rajan Thandi

Mother wins appeal over returning son to father in America

Mother wins appeal over returning son to father in America

A mother has won her appeal against a court order that she should return her three-year-old son to the United States after producing new evidence that to do so would damage her mental health.

The mother was British and the father was American. They were married and had lived in Virginia since 2016. The son was born there in 2017.

The mother alleged that the father had subjected her to controlling behaviour and domestic abuse.

She claimed that she was isolated in the US, having no family of her own there. Following various allegations of assault against the mother and, on one occasion, the son, the mother travelled to England with the boy in December 2019.

An independent domestic violence advisor stated that if the mother returned to the US, she would be at high risk of continued domestic abuse and without the support of her friends, family and professionals in the UK, her levels of anxiety and isolation would significantly increase.

In December 2020, the High Court ordered that the child should be returned to the US, subject to the father giving various undertakings.

The judge indicated that the mother's allegations were of a gravity that could engage the Hague Convention on the Civil Aspects of International Child Abduction 1980, but that she had not established that a return to the US would destabilise her parenting to a point where the child's situation would become intolerable.

On appeal, the mother sought permission to admit fresh evidence in the form of letters from her GP.

The evidence indicated that she had self-harmed and had ongoing thoughts of suicide. It reported that she was suffering from severe anxiety and low mood for which she was being prescribed medication and psychological support. Her medications were being supplied on a weekly basis due to the risk of intentional overdose.

The GP believed that a return to the US would significantly exacerbate her symptoms as well as removing her from her current support network, which was her principal protection.

The Court of Appeal ruled in favour of the mother.

It held that the evidence in the GP letters was credible and could not have been obtained at the trial. The situation portrayed in the letters was markedly more severe than previously described.

That evidence appeared to show an escalation in self-harming behaviour to the point where she could not currently live alone with the child in England, let alone elsewhere. The judge's order could not stand.

The return order would be set aside and the father's summons under the Convention would be remitted for rehearing by the judge on an expedited basis.

If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 02080040065, by email at hello@southgate.co.uk or using the form below.

Case Citations: [2021] EWCA Civ 328 RE A (CHILD ABDUCTION: ARTICLE 13B) (2021) CA (Civ Div) (Peter Jackson LJ, Haddon-Cave LJ, Elisabeth Laing LJ)

The contents of this article are general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.

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