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Three year-old can remain in the UK, Court of Appeal rules

By 19 November 2021News

The Court of Appeal has overruled the High Court and set aside an order for the return of a three year-old boy to the Balkan country Bosnia and Herzegovina.

In B (A Child), the parents were both Bosnian, although the mother had been resident in England since 1995 after arriving as asylum seeker in 1995 when she was just 14 years of age. She had been fleeing the Bosnian war with her own mother and these early experiences left her with lasting mental health problems, including obsessive compulsive disorder, anxiety and depression.

B’s father, meanwhile, was a Bosnian citizen who had never left the country. The mother met him in 2009 during an extended visit. They married in Bosnia the following year but only lived together sporadically. Nearly seven years later B was born in England. The new family spent time together before the father returned to his home country. The mother followed with B a little later. In the summer, the mother returned to England for a holiday, leaving B in his father’s care.

In October of the same year, the mother reported the father to the police, alleging domestic violence, but the couple later reconciled. The family then spent some time moving back and forth between the countries, but the mother continued to claim that the father was violent and controlling and made a number of complaints to the Police and the British Embassy in Bosnian capital Sarajevo. On one occasion he threatened to kill her, she claimed, and on another beat her. He had also snatched B from her care several times she insisted.

The Police took little action to her allegations. Finally, in January 2019, a family court in Sarajevo issued a restraining order against the father and shortly afterwards the mother took B back to England, without telling the father where they were going. She moved to Islington in London.

A complex series of legal proceedings followed. In June, the father applied for the return of his son to Bosnia under the Hague Convention on the Civil Aspects of International Child Abduction. This treaty provides a way for participating nations to quickly return children who have been abducted, typically by parents, but there are a range of available defences. The mother’s legal team cited Article 13(b) of the Convention, which allows the defending parent to argue that:

“…there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

But this argument failed to convince the judge, who ordered the return of B to Bosnia. She declared:

“…the medical evidence does not meet the threshold of grave risk of intolerable harm to [the child] occurring as a result of the impact of any such return on the mother’s mental health and consequently on [the child]”.

The Judge accepted a number of legal promises made by the father, including that B would be allowed to live with his mother once back in Bosnia. However it later emerged that the father had given misleading information to a family tribunal in Bosnia which led them to believe B had been taken into care back in the UK.

Following an episode of self-harm, the mother took her case to the Court of Appeal. There Lord Justice Moylan ruled in her favour. He concluded that the High Court Judge had not properly considered the father’s reliability, the mother’s mental health difficulties or the likelihood of B being separated from his mother. He explained:

“…in my view it is …clear that there would be a grave risk of B being placed in an intolerable situation based on the prospective significant deterioration in the mother’s mental health if she were to return to Bosnia and their prospective separation.”

The return order was therefore set aside.

Read the full ruling here.