The Court of Appeal considered a mother's appeal against a summary order returning her 4-year-old son to Australia, in a case raising the Article 13(b) exception and the risk to the child from her mental health.
Key facts
- Who: Parents facing a Hague Convention return application, particularly where a parent relies on their own mental health under Article 13(b).
- From: 14 August 2026 (judgment date)
- Source: A (A Child: Article 13(b): Mental Health) [2026] EWCA Civ 1090
The Court of Appeal (Civil Division), in A (A Child: Article 13(b): Mental Health) [2026] EWCA Civ 1090, gave judgment on 14 August 2026. Lord Justice Moylan gave the judgment, with Lord Justice Peter Jackson and Lord Justice Zacaroli sitting on the appeal. It was heard on 28 July 2026.
Background
The mother appealed against an order made on 28 April 2026 by Garrido J in the High Court Family Division. It required the summary return of B, a boy then aged 4, to Australia under the 1980 Hague Child Abduction Convention. Permission to appeal and a stay of the order were granted on 2 July 2026.
B was born in Australia in 2021. The father is an Australian citizen and the mother, who was born in the UK, is a naturalised Australian citizen. In February 2025 the mother and B travelled to England with the father's consent for what was meant to be a temporary visit, to allow the mother to help her father, who was caring for her mother, who has dementia. The visit became prolonged despite the father's repeated requests for B's return, and in September 2025 the mother enrolled B at a local school against the father's wishes.
The question
The mother had dropped her arguments based on habitual residence and acquiescence. The case turned on Article 13(b): whether return would expose B to grave physical or psychological harm, or otherwise place him in an intolerable situation. She relied on allegations of domestic abuse, which the father denied, and on the risk to her own mental health if she had to return to Australia with B.
The evidence and the first-instance decision
A psychiatrist, Dr Una McDermott, was appointed as single joint expert and reported on 24 April 2026, the working day before the hearing. She said the mother was in a highly vulnerable state of mental health and, if she returned to Australia, would more likely than not suffer a clinical depression of significant degree. If that became moderate to severe, there could be negative consequences for her emotional availability to B.
Dr McDermott was standing by at the hearing, as directed, but was not called. The judge expressed the view that he could manage without hearing her, and the mother's counsel did not pursue the application. In his judgment, Lord Justice Moylan said he thought it would have been better if there had been brief oral evidence to explore the small number of points arising from the written report.
The father gave undertakings, including a non-molestation undertaking and an undertaking not to bring proceedings for B's wrongful retention. He also agreed not to remove B from the mother's care, save for contact agreed or ordered, and to support her in accessing psychological and psychiatric services where available through his employment. The judge held that neither the abuse allegations nor the consequences of return for the mother, taken at their highest, came anywhere near establishing the Article 13(b) exception.
What this means for parents in Hague Convention cases
The first-instance judge set out that, under Article 13(b), the focus is on the risk to the child on return, and that the court looks at the protective measures that would be in place. A parent's mental health was considered in that context, alongside the undertakings the other parent offered.
Anyone facing a Hague Convention application should get legal advice early, as these cases are decided summarily and on tight timetables.
Sources
- A (A Child: Article 13(b): Mental Health) [2026] EWCA Civ 1090, Court of Appeal (Civil Division), 14 August 2026