UK courts will adhere ‘strictly’ to the Hague Convention in abduction cases warns a family solicitor after an unusual case saw a child returned to a country in which the parents only had temporary residence under a visa.
YM v ML [2025] EWHC 2219 (Fam) involved British nationals who had secured work in Australia and had secured visa for temporary residence. The case brought an application by the father (YM, referred to as “F”) under the Child Abduction and Custody Act 1985, incorporating the Hague Convention 1980, for the summary return of his son A (aged 2 years) to Australia, following the child’s retention in England by the mother (ML, referred to as “M”).
YM and ML’s relationship began in London in August 2020. In July 2022, YM secured employment in Melbourne, and the couple relocated to Australia in December 2022. ML discovered she was pregnant with A around the time YM received his job offer.
A was born in Australia in February 2023. By early 2024, the relationship had deteriorated. In March 2024, YM lost his job following a workplace misconduct investigation. In April 2024, ML left the family home after discovering YM using cocaine.
With YM’s agreement, ML advanced her flight to England from May to April 2024. In June 2024, YM visited England and was informed by ML that she had cancelled her return flights to Australia. ML cited her need for counselling and her desire to celebrate her 40th birthday in England.
Although YM agreed to this delay, he claimed it was conditional on ML confirming in writing that she would return to Australia with A.; confirmation that never came. ML later decided to remain in England permanently, citing emotional harm and YM’s alleged acceptance of this decision.
YM initiated proceedings with the Australian Central Authority in late 2024, and the formal application for A’s return was filed in April 2025. Hearings were held in July and August 2025.
The mother opposed the return under Article 13(b) of the Hague Convention, arguing that returning A would expose him to a grave risk of harm or place him in an intolerable situation, citing:
- Alleged domestic abuse by the father.
- Her mental health vulnerabilities.
- Her precarious immigration status in Australia.
The mother was represented by Ellis Jones Solicitors after she retained the child in England. She said the couple’s relationship deteriorated after the father had lost his job and they had separated when she witnessed him misusing illegal drugs in the boy’s presence. She also cited ‘verbal, emotional and financial abuse’. As respondent in the case, she also said her own mental health would deteriorate if required to return.
The case centred on Article 13(b) of the 1980 Hague Convention, but, say Ellie Jones Solicitors, the unique part of her case was the uncertainty over her visa and immigration status in Australia, which she said could result in separation from her son, placing him in an ‘intolerable situation’.
While the court accepted these were ‘serious issues’, it found that the legal test of ‘grave risk’ under Article 13(b) was not met and therefore ordered the child’s return to Australia, albeit subject to rigorous protective measures, including independent accommodation for the mother and child, financial support and private medical cover.
The judge also found that the mother’s concerns over her immigration position could be appropriately dealt with in Australia before her working visa there expires in 2029.
“The courts do take a strict approach to abide by the Convention, and the bar for an Article 13(b) defence is very high, but nevertheless this case was interesting due to its unique set of facts and immigration issues. I have never had a case where all parties are UK nationals being returned to a country they only have a temporary right to reside in. The mother’s right was reliant on a visa that was at risk of cancellation due to the parties no longer being in a de facto relationship. The judge had a lot to grapple with. The court clearly took the view that the risks posed to the mother could be safely managed through protective measures.”
said Georgina Emerson, Senior Associate Solicitor in Ellis Jones’ Family Law Department, who acted on a pro bono basis.
“It is a cautionary reminder of the importance of taking legal advice before removing a child out of a country. Any parents in similar cross-border disputes absolutely need to understand the law and rules around relocating a child to a different country and the stability of their immigration status in each jurisdiction.
“We now live in an age, post-Brexit, where some families are increasingly reliant on visas, and immigration uncertainty may rear its head more frequently in cases involving child abduction. If any parent wishes to relocate their children to another country, I strongly urge them to seek expert legal advice prior to any move, as this case is a reminder of the court’s strict adherence to the Hague Convention. The UK court takes its obligations under the convention very seriously and, rightly or wrongly, will return children who have been wrongfully removed from their home country provided sufficient protective measures are in place.”
