The High Court has dismissed an Australian woman’s application for the return of her son and daughter from Britain.
In BP v DP, she had met a British man in 1999. They married two years later, and went on to have two children, a boy now aged 12 and a girl now aged nine. Both hold dual British and Australian citizenship.
The family lived in England until the marriage crumbled in 2008. By that point, the father was employed in Dubai working for an oil company. In July that year, the mother and children travelled back to Sydney in Australia to celebrate her father’s 80th birthday. The father reportedly believed this was a temporary visit but the mother did not return, placing the children into Australian schools.
At the same time the mother began treatment for an addiction to painkillers. The father travelled out to Australia but was told that the mother “could not contemplate” a return to England. She needed a period of outpatient treatment to help recover from her addiction. The father reluctantly returned to Dubai, leaving the children behind in Australia.
By October the couple had formally separated and divorce proceeding began.
At the High Court, Mrs Justice Roberts explained:
“As part of the financial consequences of the divorce, the father has continued to maintain the mother and children from his income which is now derived from his work as a freelance consultant in the gas and oil industry. Neither the mother nor the father has remarried.”
In addition, during the divorce the father formally consented to the children remaining in Australia with the mother. He also paid the mother’s medical bills as well as the rent on the flat in which the family were staying. They lived close to the mother’s brother and the children attended a local school. The father visited occasionally.
However, the mother once again began to slide into addiction. This time the problem was alcohol. By 2013 she had become, in her own words, a “functioning alcoholic”. That year she convicted of drink driving with the children in the car. The father’s mother visited and was shocked by the dishevelled condition of the family’s flat. The children said the mother was drinking and they had seen empty bottles in her bedroom.
The grandmother discussed her concerns with both the mother’s family and the father. As a result her relationship with the mother became strained and the father too began to have problems contacting the mother and children.
Mrs Justice Roberts explained what happened next:
“It is the father’s case that, in April 2013, during the course of a telephone conversation with J, he learned that his son had become increasingly worried about his mother and asked his father to travel to Australia to “make sure mummy gets better”. According to the father’s case, by this stage it appears that the children had observed their mother drinking to the extent that she would frequently fall and injure herself and, on occasions, pass out through inebriation.”
However, the mother denied the children had ever been placed in danger. The father emailed his former wife:
“Mum’s visit has, I know, been a very stressful time for you and as it turned out, for mum too. I have been shocked to learn that things have become quite so bad, and that you have become dependent upon alcohol.”
He expressed sympathy for the mother’s problems and suggested that the “open a dialogue” on ways to give the children the “stability they require” while also giving her the time and space to address her problems. He suggested that she return to the UK or that the children come and live with him because she was “not coping well”.
The mother, however, insisted that she did not need time to recover and instead suggested that the father move to Australia. Later, she broke off all contact with him and even prevented him from speaking to the children he claimed.
Then in July 2014, she announced plans to move to Queensland and enrol the children in new schools there so she could be closer to her family. The father was furious and reminded her of her previous claims that the children’s education in Sydney meant she could not return to England.
The situation then reached crisis point. The mother was admitted to hospital with liver failure and alcoholic hepatitis (inflammation). A doctor reported that her chances of survival were just 50:50.
Meanwhile the children flew over to the Gold Coast in Queensland to stay with relatives. Unable to reach them, the father emailed the mother’s family, saying:
“I am out of my head with worry as I don’t know anything, nor have I been able to reach them for the last week, or especially this weekend upon being informed of the intended move… I am very concerned for the welfare of my children, as I am worried that [the mother] may be abusing substances once again”.
The mother’s brother, who had become increasingly worried about his sister, got in touch with the father and made arrangements for the children to fly back to England to be with him.
If the mother survived, she would need a lengthy period of treatment, perhaps as long as nine months. The mother was “extremely distressed” at the thought of the father looking after the children for such a lengthy period but realised she had little choice but to agree, as the only alternative was for the youngsters to go into the Australian care system.
She signed a form agreeing that they could fly to England to stay for a period up to one year. The father acknowledge receipt but claimed he had never agreed to the children returning after a year.
“As far as he was concerned, he was involved in crisis management and his only intention at that stage was to ensure the children’s safety and wellbeing.”
The grandmother accompanied the children back to England in August 2014 and they have remained here ever since.
“The father says that they were very thin and pale when they arrived and were generally unkempt and had little knowledge of personal hygiene routines. He describes them then as being “clearly troubled” and “showing real symptoms of long term neglect”. “
The mother survived her illness. She was discharged from hospital and entered rehab. By November last year, she had been free from drugs and alcohol for a full 14 months and no longer showed signs of the depression she had previously battled.
She has now left the rehab unit and is living in a one bedroom flat with government assistance. She is on a priority waiting list for a three bedroom property if and when the children are returned to her care.
The mother applied for the return of the children, under the Hague Convention on the Civil Aspects of International Child Abduction.
She admitted that a return to Australia would mean further disruption to the children’s education, but said she was quite willing to undergo drug testing and even unannounced visits by social services in order to demonstrate that she had overcome her problems and was now capable of properly caring for her son and daughter. She is still undergoing counselling.
In a detailed judgement, Mrs Justice Roberts considered the facts of the case. The children had quickly adjusted to their new lives with their father and were doing well in English schools.
The older boy, ‘J’, sent his mother a Facebook message asking to be brought back to Australia, but Mrs Justice Roberts concluded that it had been a simple expression of loyalty to his mother. When asked directly, J insisted that he wanted to say in England with his father.
The Judge concluded that the children, now thoroughly settled with their father, had acquired habitual residence in England. Consequently, the father’s retention of the children in England beyond the initial one year term had not a breach of the Convention, which is focused on the return of children to the country in which they are habitually resident. Therefore the mother’s application was dismissed.
The ruling is available here.