State Central Authority, Secretary to the Department of Human Services v. Mander [2003] FamCA 1128

INCADAT legal file Hague parental abduction

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Grave Risk – Art. 13(1)(b)
The trial judge examined the factual scenarios and outcomes in several cases including Walsh, Pollastro, Re F., and Murray, and concluded that there was not the same level of violence or intensity of threats in the present case. Nevertheless there was a common sub-theme of an ongoing and chronic situation with the children living in fear and being constantly on the move without any form of security. The parent’s relationship in the present case had necessitated constant court proceedings and the regular invocation of criminal sanctions. In such circumstances, and given the common substratum of facts emerging from each side’s story, a grave risk of harm arose as a result of the history of the relationship. A return to England would most likely lead to a continuation of the problems that had dogged the children during their lives in England. Having found that a grave risk of harm existed the trial judge turned to the exercise of his discretion. He noted that whilst the English legal system provided ample legal protection and the English police and social services excellent care for ?battered women” the reality of life for the children was that the presence of the mother and the father in the same country at the same time would inevitably to lead to further incidents of violence. He noted that ?[i]t is clear that the existence of court orders and criminal sanctions has not abated the degree of violence”, such that the Court was ?satisfied of the existence of a grave risk of harm in this case”. The return of the children was therefore refused. The return of the children was therefore refused.