![No: FD24P00469 - [2025] EWHC 799 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
Other Matters
Other Matters
Mr Evans raises two further matters in support of his Art 13(b) defence. These can perhaps be taken a little more briefly.
The first of these concerns the mother’s family position in England. Here Mr Evans identifies a number of features:
The maternal grandmother has been diagnosed with terminal cancer. The relationship between the mother and grandmother has not always been close, but the recent time that the mother has spent in the UK has allowed this relationship to be rekindled.
Were a return to be ordered the mother would be placed in an invidious position of either having to leave her mother (to return to Australia with D) or to be separated from D if she wished to spend time with her mother.
The mother’s sister is looking after two of her brother’s children under a Special Guardianship Order, and the mother is providing her sister with support in this regard.
The mother has identified in her evidence that being unable to be in the UK to provide support to her mother and her sister would take a further toll on her mental health.
It is further suggested that because many members of the mother’s family have criminal convictions it would not be possible for them to obtain visas to visit the mother should she return to Australia. However, I have not been provided with any evidence on Australian visa policies and I place no weight on this point.
The second matter raised by Mr Evans relates to the potential risk that the mother and D will be separated. The maternal grandmother’s terminal illness may require the mother to return to the UK to provide support to her or her close family. The father’s position is that if she were to do so, he would be willing to care for D in Australia. I am told that at the last hearing Judd J invited the father to provide his consent for D to return to the UK for a visit if the mother needed to make such a trip; however, he has not done so. Mr Evans therefore argues that there is a risk that if the mother needed to return to the UK to see the maternal grandmother, this would lead to D being separated from his primary carer.
I consider that the circumstances of the maternal grandmother’s terminal diagnosis do mean that a return order would pose additional risks to D, both from a possible further deterioration in the mother’s mental health, were she required to making the invidious choice between caring for D or returning to the UK to spend time with her dying mother and from the likelihood that (in the light of the father’s position) a trip by the mother to see the maternal grandmother would lead to an extended separation of D from his primary carer. These are matters that I must consider cumulatively alongside the other risks identified above.
I should record that I am not persuaded by Mr Evans’ argument that the mother’s inability to assist her sister with caring for their brother’s children is, of itself, likely to contribute in any meaningful way to any deterioration in her mental health.