The application related to three children, aged almost 14, 12 and almost 10, at the date of the alleged wrongful removal. Until that moment they had spent their entire lives in New Zealand. The parents were divorced and in a separation agreement made in 1991 they had agreed to joint custody, albeit with the mother having primary care. However, the mother was not to take the children overseas other than for holiday purposes during school vacations except with the leave of the father.
After an incident in 1991 the eldest child refused to have further contact with her father. The father never had contact with the youngest child, indeed at one stage he wished to be reassured as to his paternity. Only the middle child had regular contact, of about 4 weeks each year, with his father.
The mother remarried in 1994 and later that year gave birth to another child. The second marriage ended in early 1997. The mother alleged that her second husband mistreated both her and the children. In March 2000 the mother travelled to England with all 4 children. She did not obtain the permission of either father, or of the court. Initially it was her intention to stay until December 2000, although this subsequently changed.
On 30 May the father of the 3 children of the first marriage issued a return application.
On 27 July the children were interviewed by a court welfare officer. He reported that the eldest child objected to a return and was of sufficient maturity. The middle child was also of sufficient maturity but was confused at having to choose between his parents, while the youngest child clearly objected, but his maturity was more difficult to assess.
On 1 August the mother was seen by a consultant psychiatrist who found her to be suffering from mild to moderate depression and stated that this would become more profound if she were to return.
On 27 October the High Court ruled that the removal of the children had been wrongful, but it found that a grave risk of an intolerable situation had been proved in accordance with Article 13(1)(b) and it exercised its discretion not to order the return of the children. In reaching this finding the trial judge accepted the mother’s evidence as to the second husband’s treatment towards her, the fact that she might cease to be able to cope were she to go back and the fact that the children were dependent upon her coping.
He found that the children would be in an intolerable situation if the mother’s ability to care faltered and indeed that they could consequently suffer physical and or psychological harm. The objections of the eldest child were rejected because of her misapprehension that a return was linked to a renewal of a relationship with her biological father.
The father appealed. On 19 December 2000, by a majority verdict the Court of Appeal found that none of the exceptions had been proved to the standard required under the Convention. The mother applied for leave to appeal to the House of Lords. Leave was refused.
The mother then applied for the Court of Appeal order of 19 December to be set aside. It was argued that her reluctance to return on 19 December had been transformed into a psychological inability to return.
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