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Louisa Gothard
Louisa Gothard
Senior Solicitor, Head of Family Law
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ABDUCTION: Re B (Abduction: Grave Risk) [2005] EWHC 2988 (Fam)
Date:31 JAN 2006

(Family Division; Sir Mark Potter P; 21 December 2005) [2006] 1 FLR 1095

The Australian court refused the English mother's application for leave to remove from the Australian jurisdiction, considering that a removal would damage the children's relationship with the father, and that the mother's psychological state was resilient enough to cope with the increased difficulties she would experience away from her family roots. The mother was awarded custody, with contact to the father on the basis of a requirement that the father not drink while with the children. On the mother's evidence the father breached that condition and the mother became increasingly depressed. Eventually, the mother wrongfully retained the children in England following a holiday. The mother's defence was that there was a grave risk to the children if they were ordered to return.

The court should not succumb to the temptation of a short cut solution. The proper solution was to return the children to Australia for the Australian court to reconsider the position on the mother's renewed application for leave to remove from the Australian jurisdiction. The Australian court should consider, among other issues, the mother's health, the father's non-payment of maintenance, and the father's apparent breach of the undertaking not to drink while the children were with him.