As any regular reader of this blog will be aware, reports of cases involving children are usually anonymised to protect the privacy of the child. However, there are occasions when the court decides that it is appropriate to release full details of the case. One such occasion is when the whereabouts of the child are unknown and the court decides to release details in an effort to locate the child.
That is what occurred in the recent case Uhd v McKay, which concerned an application by a father for the summary return of his three year old daughter Ruby to Australia.
There is quite a lot going on in this case, but I don’t need to discuss it all for the purposes of this post. I will not therefore be going through all of the details of the case, but if you are interested you can read the full judgment here.
The essential facts of the case were as follows. The father is an Australian national. The mother is a British national but has lived in Australia for about the last 22 years. They began cohabiting in November 2012 and married in April 2013. Their daughter, Ruby, was born in December 2015, although by that time the marriage had broken down and the parents separated.
On the 22nd of September 2018 the mother removed Ruby from Australia without the father’s consent, and brought her to England. She then bought a camper van and proceeded to tour the country with Ruby, eventually ending up in the Outer Hebrides, where she lived for two months during October and November 2018.
The father eventually found out that the mother had brought Ruby to this country. He therefore commenced proceedings under the Hague Convention on Child Abduction for Ruby’s summary return to Australia. As Ruby’s whereabouts were not known, Mr Justice Keehan made an order permitting details of the case to be reported in the media, in an effort to locate her. After extensive media coverage, Ruby was located, and the father’s application was set down for hearing.
The mother opposed the application, relying on the exception provided by Article 13(b) of the Convention, namely that to order the summary return of Ruby to Australia would result in a grave risk of exposure to physical or psychological harm, or otherwise place Ruby in an intolerable situation. In seeking to make good that exception, the mother made extensive complaints regarding the conduct of the father during the course of their relationship, and thereafter within the context of extensive proceedings in Australia relating to Ruby’s welfare, which proceedings remain ongoing in that jurisdiction.
The matter was heard by Mr Justice MacDonald in the High Court. His conclusions were quite clear. He said:
“I am satisfied that the mother’s actions in removing Ruby from the jurisdiction of Australia represented a blatant and premeditated act of child abduction. That conclusion is reinforced by the fact that having abducted Ruby from the jurisdiction of Australia, the mother sought to go to ground in the Outer Hebrides in an effort, I am satisfied, to avoid detection … this court is also left with the strong impression that thereafter the mother sought before this court to distort and misrepresent the facts in this case with the aim of bringing herself within the exception provided by Article 13(b) of the 1980 Convention.”
The mother’s Article 13(b) ‘defence’ was not made out, and therefore Mr Justice MacDonald ordered the summary return of Ruby to the jurisdiction of Australia. Any disputes between the parents regarding Ruby’s welfare would be determined by the courts of Australia, the jurisdiction of Ruby’s habitual residence.
Hopefully, this case will act as a warning against parents seeking to avoid the law in the way that the mother did here. The arm of the law is long, and such actions are ultimately only likely to make matters worse.
I should point out that Mr Justice Keehan’s order did not mean that this final judgment need not be anonymised. However, Mr Justice MacDonald took the practical view that, having regard to the extensive information that had already been placed in the public domain by that order, he was satisfied that this judgment should be published without being anonymised.
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Author: John Bolch