Grave Risk – Art. 13(1)(b)
The court distinguished the instant case from previous case law on the basis that the mother had not deliberately refused to return to the United States. She had not endeavoured to create a defence of grave risk of psychological harm or an intolerable situation, she had consented to an order to escort the child back to the United States. The court was satisfied that subsequently the mother had taken all reasonable steps to re-enter the United States. The court also drew attention to the fact that the mother’s difficulty in getting a visa was directly attributable to the father having instituted divorce proceedings in the Supreme Court of New York.
Human Rights – Art. 20
Although not raised in argument, the court found it probable that the matter also fell within the ambit of Section 16(3)(d) of the regulations implementing the Convention, that the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms. It was contrary to all concepts of fairness that the question of the custody of the child should be conducted in circumstances where the mother was denied the right to appear.
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