"The father’s messages to the mother on 13 January 2011 to “get f***ed, b***h” and “I’ll ... belt ya” were sent when, in fairness to him, he may not have been fully in control of his faculties."
….
"Nor, for that matter, do we agree with the suggestion … that the judgment in In re E had been no more than a “restatement” of the law of the Convention: it was primarily an exercise in the removal from it of disfiguring excrescence."
A much more serious turn of this case, with a great potential effect on "grave risk" case law, is this:
18. [Trial judge] Charles J was understandably critical of [psychologist] Ms MacKenzie for stating as facts the allegations about the father which the mother had made to her and indeed for venturing even a provisional clinical opinion about him. But Ms MacKenzie’s professional conclusions about the mother, born of extensive attendance upon her, remained of great relevance. She wrote that, from childhood, the mother had had an underlying and chronic anxiety condition; that she was subject to panic attacks; that she had seen the mother unravel; that the mother’s affect of fear overwhelmed her; that fear of the father’s mental instability, added to the stress of isolation in Australia from her family, might well undermine the mother’s capacity to hold herself together; that her likely clinical depression could diminish her secure attachment to W; and that, in that (so Ms MacKenzie said) the father was capable of being impulsive and dangerous towards her, the mother would be in a constant state of hypervigilance, this being the very condition which would trigger an anxiety state. Ms MacKenzie wrote: “Should [the mother] be forced to return to Australia, I am concerned her anxiety will become crippling.”
So, partly because of stuff the mother's mother and father did during her childhood, the mother needs to be in another hemisphere in order to not have crippling hypervigilance and anxiety attacks that will be very bad for the child.
What's so dangerous about this is that every step of it is logical and defensible, and I can think of many cases that we know first-hand and second-hand where there are facts that would fit into that theory. And it raises a defense to return of the child that would affect all kinds of cases. And of course it makes one wonder about the cases where the mother reacts that way based on facts that are either unproveable or even widely believed to be false. The opinion address that concern:
27. In In re E this court considered the situation in which the anxieties of a respondent mother about a return with the child to the state of habitual residence were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child’s situation would become intolerable. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk; and will, among other things, ask itself whether they can be dispelled. But in In re E it was this court’s clear view that such anxieties could in principle found the defence. Thus, at para 34, it recorded, with approval, a concession by Mr Turner QC, who was counsel for the father in that case, that, if there was a grave risk that the child would be placed in an intolerable situation, “the source of it is irrelevant: eg, where a mother’s subjective perception of events lead to a mental illness which could have intolerable consequences for the child”. Furthermore, when, at para 49, the court turned its attention to the facts of that case, it said that it found “no reason to doubt that the risk to the mother’s mental health, whether it be the result of objective reality or of the mother’s subjective perception of reality, or a combination of the two, is very real”.
The present case, the court points out, is NOT the pure case posed in the title of this post: This is a case with some pretty good evidence of abuse and danger. But it still raises and explores the troubling question of whether children can be permanently taken from their home countries based only on the abductor's subjective perceptions and resulting mental-health problems.
But most such cases, i.e. cases of a "grave risk" defense based principally on the abductor's mental health problems and anxieties with no grounding in fact, would not actually present such a difficult dilemma, because the solution would in fact be simple — return the child to the home country in the care of the left-behind parent, not the abductor. That way, the abductor will have her anxieties but her opportunity to harm the child will be limited, and the family courts of the home country will then do what they can to repair the damage and figure out the "least-worst" place for the children to be.
On the other hand, if a parent really has been abusing a spouse or a child, then that parent may have to suffer the consequences of all the damage he has caused, including consequences flowing from other parent's sometimes less-than-perfect reactions and, in some cases, fragile mental state.