We represented the mother of a young child who came to the UK herself as a child asylum-seeker from Bosnia, escaping the war there. The mother is extremely vulnerable having been a victim of domestic abuse and also suffers from mental health difficulties partly due to her experiences during the war.
In 2009 she met and married a Bosnian national and in 2017 had a child with him. After the child’s birth the couple travelled back and forth between Bosnia and England until February 2018 when the father took the mother and child’s passports thereby preventing them from leaving Bosnia.
During this time, the mother was subject to domestic abuse whilst in Bosnia. In January 2019, an incident of violence resulted in police action and the father was arrested. The child and mother were placed in a women’s refuge by social services and a restraining order was placed on the father.
With the restraining order in effect, the mother was able to return to the flat she shared with the father and obtain – amongst other items – her child’s passport. On 7th February 2019, she returned to England to live in London, taking the child with her and without informing the father.
Following the mother’s removal of the child, the father lodged a criminal complaint against her for child abduction, he also (unsuccessfully) sought to appeal his restraining order.
Commencement of proceedings
The mother issued wardship proceedings at the same time as the father issued Hague Child Abduction Convention proceedings. Under the rules, the latter trumps the former. The mother argued that the child was and had always been habitually resident in the UK and that removal to the UK had been with the overall consent of the father who had always agreed that the family would settle in the UK.
When these arguments failed, the mother relied upon the defence of grave risk of harm due to domestic violence (under Article 13(b) of the 1980 Convention. However, the mother’s applications for psychiatric assessments were refused and in September 2019 (the September order) the court concluded that the child was in fact habitually resident in Bosnia and therefore had to return. We applied to appeal this decision, however it was refused by the Court of Appeal.
Following the September order, the mother’s mental health deteriorated further and she became suicidal, and self-harmed.
With this change of circumstance in mind, on 18 October 2019 we issued an application under Part 18 of the Family Procedure Rules 2010 ("the FPR 2010") to set aside the September 2019 order. We also issued an application under Part 25 of the FPR 2010 for a psychiatric assessment of her. The mother at this stage felt she could not face a return to Bosnia.
On 23 October 2019 the father applied for the court to fix a date for B's return to Bosnia.
Both applications went before the court at the same time, and we were successfully able to demonstrate an arguable case, as a result of which the court stayed the return order, pending full consideration of the applications to set aside. We were also successful in securing the court permission to instruct an independent psychiatrist (Dr Ratnam) to undertake an assessment of the mother’s mental health.
Father’s breach of undertakings
Notably, the September return order recorded a number of undertakings given by father ‘intended to be enforceable against him’. Crucially, these undertaking included: not to seek to separate the mother from the child save for any periods of agreed contact, and to provide monthly child maintenance to the mother.
On 19 November 2019, unbeknown to the mother, the father obtained a provisional decision from the "Cantonal Centre for Social Work" in Sarajevo which provided that the child would live with him and would have contact with the mother. The mother was also directed to pay child maintenance to the father. This was in direct contravention of his undertakings to the UK court.
The Cantonal Centres appeared to have accepted the case as advanced on behalf of the father and determined that the mother's "condition requires continuous psychiatric treatment, which prevents her from caring for [the child who] has therefore been referred for care to" the local social services.
This was a position that was clearly based on the unfounded suggestion that the child had been taken in to care due to the mother’s inability to care for him. Not only had the child not been taken into care, the medical professionals involved with the mother over the years, raised no concerns about the mother’s care for her child. The independent psychiatrist, later also concluded the same.
It also appeared that the father had neglected to inform the Cantonal Centre of his undertakings to the English court.
On being notified of the formality of this decision, we amended the mother’s application to set aside the September return order, relying additionally on the father’s breach of his undertakings. Significantly we had been able to successfully apply for a report from a Bosnian Family Law expert, who confirmed that the undertakings given by the father to the UK courts were not automatically enforceable in Bosnia.
The mother’s mental health deteriorated further when in December 2019, following a court directions hearing she made a further attempt to take her own life.
In February the application to set aside, was dismissed by the judge, who concluded that the mother’s refusal to return to Bosnia was “a choice that she had made because she feels that she cannot cope.” She did not consider that returning the child to the father’s care would be a problem and ruled that the Bosnian courts would ultimately have to decide where the child lives and with whom. Notably, with regards to the father’s breach of undertakings, the judge noted that although the father had breached the undertaking, when considering the delays that had occurred in proceedings in England and the September order, this breach did not evidence disregard of the undertaking or “bad faith on his part.” He had not seen his son, whom he had been co-parenting, since his removal in February 2019 and it was "difficult to be overly critical of him for the enthusiasm with which he has pursued his case" in Bosnia.
On 3 April 2020, permission was, granted by the Court of Appeal, to appeal this decision.
Lord Justice Moylan determined that by the end of the hearing “it was clear to me that the appeal must be allowed and the father's application under the 1980 Convention be dismissed because Article 13(b) was clearly established.” He noted that the judge’s determination could not stand for a number of reasons:
“First…The judge did not first consider whether there had been a sufficient change or changes to justify setting the September order aside and then go on to redetermine the father's application. Instead, her consideration of both elements overlapped and were, as a result, interspersed in her judgment. As a result, at both stages she appears to have applied the test of whether there had been a fundamental change of circumstances.”
“Secondly, when determining whether there had been a fundamental change of circumstances… she did not then consider the matters relied on by the mother in conjunction.”
“Thirdly…the judge did not conduct an assessment based on all the material for the purpose of deciding whether the exception under Article 13(b) was established but only conducted a limited reconsideration.”
He further noted that he did not share the same view concerning the father’s breach of undertakings.
“I take a different view to the judge as to whether the father can be criticised for acting as he did. In contrast to her conclusion, I can see no basis on which his conduct can either be justified or diminished. He had given an undertaking to this court and he acted directly contrary to it. He can, therefore, be criticised for taking the "steps" which he did and seeking to "progress" his case as set out in the previous paragraph. I do not see how any "delays" in the resolution of the case in England, nor do I consider that any misplaced "enthusiasm" to progress his case in Bosnia, mitigate the father's breach of the undertaking.”
He ultimately decided;
“In conclusion, therefore, in my view there had clearly been a fundamental changes or developments justifying setting aside the September order. These comprised the breach by the father of his undertaking, the evidence given by Dr Ratnam as to the effect on the mother's mental health if she returned to Bosnia and the mother's consequent decision that she could not return to Bosnia… I would therefore allow the appeal, set aside the order for B's return to Bosnia and dismiss the father's application under the 1980 Convention.”
The mother was represented by Family & Childcare Law Director Adeeba Naseem.