Grave Risk – Art. 13(1)(b)
The Court held that care had to be taken against allowing evidence which was primarily directed to what the child’s best interests would be in any dispute over primary care. It noted that the following general principles were relevant: 1) The focus is on the child’s situation, not that of the abducting parent. 2) It is the return to the country of habitual residence, not the return to the left behind parent, that must cause the “grave risk.” 3) The physical or psychological harm must be substantial or severe. 4) The harm done must be more than the damage that is a natural consequence of the disruption to the child’s life of the removal and the return. 5) The risk posed must be substantial. 6) The abducting parent cannot create a situation of potential harm and then rely on it to prevent the child’s return. On the facts there was not sufficient evidence to maintain an argument that the mother, with whom the child had a secure attachment, would fail to return to Australia and that this failure would result in psychological harm to the child. Furthermore there was no certainty that the Australian court would in fact change the already existing Australian custody arrangements to the mother’s disadvantage.
Objections of the Child to a Return – Art. 13(2)
The court noted that at the age of 11 _ the child was within the range of ages where a child’s objections had in the past been considered. In this the judge had been persuaded by the evidence of the psychologist instructed as well as on her own interview with the child. The latter meeting, during which the child’s counsel was present, terminated when the boy became unwell and vomited as a result of the judge mentioning the possibility of a return to Australia. The court accepted that the boy objected to returning. The court also drew attention to the need to comply with Article 12 of the United Nations Convention on the Rights of the Child.
