International relationships and child abduction

Mary Welstead Visiting Professor in Family Law University of Buckingham

In Re A (2003) HHJ Cobb decided that a child should not be returned to Australia when his mother retained him in the UK against the wishes of his father. The judgment illustrates the limitations of the 1980 Hague Convention on The Civil Aspects of International Child Abduction in resolving such removals.

HHJ Cobb considered the meaning of Articles 3 12 and 13(b) of the Convention. He concluded that the child was not habitually resident in the UK.  However he accepted that the likely worsening of the mother’s mental health were the court to order the child to be returned to Australia would put him at serious risk of physical or psychological harm or an intolerable situation.

The judge stressed that the court would be most careful in its consideration of claims by parents that their own distress would have a disastrous effect on the child were he to be returned.  Many parents would be anxious in that situation. However the mother’s mental state in Re A was exceptional and was...