High Court sets aside order to return child to Italy

Children|Divorce|June 9th 2014

A mother who had been ordered to return her three year-old son to Italy has had the ruling overturned by the High Court.

In TF v PJ, Ms Justice Russell had ordered the return of the woman’s son, referred to as ‘RF’, at a hearing in November last year, shortly before her official appointment to the High Court. The father had applied for his return under the Hague Convention on the Civil Aspects of International Child Abduction, an multinational agreement which allows children taken without permission into other participating countries by a parent to be returned home.

The mother initially appealed, but when this was unsuccessful she applied to have the ruling revoked.

Sitting at the High Court in London, Mr Justice Mostyn explained:

“She alleges that since the order made by her and, more particularly, since the order made by the Court of Appeal she has had a total psychological and psychiatric collapse.”

The judge considered whether or he had the legal right to revoke the earlier ruling. He considered a number of precedents, in particular the 2013 Supreme Court ruling In the Matter of L and B. This contained the right of a judge to change his or her mind on a case. In that case a judge gave a written judgement which differed from her spoken judgement two months earlier.  The Supreme Court ruled that the judge had been free to change her mind because her earlier spoken ruling had not been finalised.

Mr  Justice Mostyn concluded that rule 4.1(6) of the Family Procedure Rules do provide courts with the power to “vary” [change] or “revoke” [cancel] a legal order, provided there has been a failure to disclose relevant information or a “significant change of circumstances”.

He  considered an assessment of the woman’s mental health by a psychiatrist. This had concluded that she was suffering from an acute anxiety disorder “and associated depression”. He declared:

“I consider her condition to be genuine.”

He continued:

“The trigger to do with the deterioration in mother’s mental health is her fear of a return to Italy. Her condition deteriorated on 29th November when the return order was made. It seems that her panic attacks have worsened as have her nightmares.”

If her son was removed from her care, she “would lapse into a state of despondency and depression”, he said. He was also a suicide risk.

Mr Justice Mostyn concluded:

“This evidence goes far beyond anything that was before Ms. Russell QC or the Court of Appeal. To my mind it represents a sea change in the relevant evidence appertaining to the mother’s mental health. That alone, in my opinion, justifies a finding of a material change of circumstances.”

Read the full judgement here.

Photo of the Royal Courts of Justice by Tony Hadnutt via Flickr under a Creative Commons licence 

Author: Stowe Family Law

Comments(7)

  1. sue says:

    I do not understand the logic of family courts. In this case the mother keeps her child because she has a mental breakdown. In care cases parents are deprived of their children on the grounds of emotional harm because of similiar circumstances!

  2. Andrew says:

    Yet again the courts put a premium on abduction.

  3. Helen Gers says:

    I totally understand this poor woman. Having to leave my son in South Africa and return to the uk due to loosing my job and receiving no maintenance from a man I was never married to! I have now been diagnosed with severe stress and anxiety and am terrified to fight in South Africa for my son as if I loose I risk the father being very difficult. We have joint rights and responsibilities but foreign courts are just not as understanding as British courts….There is such a GAP in the law regarding these Hague Issues…..can’t wait until my son is old enough to tell the courts what he tells me ….’can’t wait to live with you mom’ would love to know who represented this woman!!??

  4. Luke says:

    If the facts here stated are true then Judge Mostyn should be removed from the Bench – the mother abducts a three year old child and is now managing to keep the child here because she is claiming mental breakdown ?????????????

    Family Court has gone mad…

  5. H says:

    This is interesting because psychiatric assessments are frequently carried out on fathers to see if any trace of depression, anxiety, can be used by the court to exclude them completely from the life of their children.

    Yet another example of unashamed institutionalized sexism.

    While the mother’s circumstances are unfortunate, you cannot have a law that claims to put child welfare at the top, and then so blatantly undermine that law. Now we’ve got the remarkable precedent that mental illness can be used as a rationale for abduction. The courts just seem to be on their way to perfecting their irrationality.

  6. Mental Illness in Children says:

    […] Kids How to Properly Care for Their PetsHow To Potty Training Defiant ChildrenHigh Court sets aside order to return child to Italy1 in 8 Children Abused Before 18th Birthday, Study FindsStudy Shows The Therapeutic Effects of […]

  7. Cheryl says:

    What is wrong with you people?? This mother is and always has been this boys primary care giver. To send him back to someone who’s never looked after him is child abuse. If the mother returned with him, or without him, the risk of a breakdown or suicide is high and clearly, the wellbeing of the child relies on her being able to continue to cope. Sending him back would constitute court ordered child abduction.. there is nothing to stop that pathetic excuse for a father jumping on a plane for contact other Than his evident desire to control the mother and upset his son for whatever cost. This judge did the right thing without a doubt

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