D, Re An Order Under The Child Abduction & Custody Act 1985

[1] This is a petition at the instance of a mother of two children, seeking an order under the Child Abduction and Custody Act 1985, in respect of the now admitted wrongful removal of the children from California by the respondent. The respondent's case was that there was a grave risk that if the children were returned, they would suffer physical or psychological harm or be placed in an intolerable situation.

[4] The respondent avers that he removed the children as a result of an increasing dependency upon drug taking by the petitioner and specifically that he did so after the petitioner and a Brian Schwake had been present in the house and creating a scene. He alleged that both the petitioner and Brian Schwake had a drug habit and used to buy and sell drugs.

[6] The parties' eldest child was residing with the parties' consent in Tennessee with her maternal grandmother throughout the events in question.

[8] Counsel for the respondent accepted that the onus which lay upon him in relation to Article 13 of the Convention was a heavy one and claimed to have discharged it on the basis of the unsatisfactory character of the petitioner. He also claimed that because of the evidence of threats from associates of the petitioner that there was a grave risk that the American Court would not be able in time to afford adequate protection to the children if they had to return and that accordingly the children would be placed in an intolerable situation.

[10] Counsel for the petitioner urged upon the Court the case of Friedrich v Friedrich 7DF3d1060 (1996) in which the following statements were made: