When a parent has removed (abducted) a child from another country and brought them to the UK without the agreement of the other parent, we are often told that the child does not want to return and this is regarded by the parent as an objection. We are often asked to advise on whether this will be enough to allow the child to remain with the parent in the UK.
The answer will always depend upon the facts of the individual case, although the starting point is that if a child has been abducted or wrongfully retained in the UK the Court is likely to order a return.
However, the question of whether the child truly objects, and the weight given to this, has recently been considered in a father’s Appeal against a decision to return two children (aged 9 and 13) to their mother in Australia when he had wrongfully retained them in the UK.
Objections from children in abduction cases
F (Child’s Objections) (was Re N on appeal) [2015] EWCA Civ 1022
The father had wrongfully retained the children in January 2015 and the original trial judge ordered the return of the children to their mother in Australia.
The parents were both British and were living in England when the children were born. They emigrated to Australia in 2007 and separated within a matter of months. The mother remained in Australia in the former matrimonial home with the children and the father returned to England.
After spending the 2014 Christmas period with their father, the children did not return to Australia as planned and the father admitted that he had wrongfully retained them. The mother then lost her home in Australia when the father stopped paying the mortgage.
The children expressed a strong desire to remain with their father in England and the father put this to the court at trial. The trial judge found that while the children had a wish and a preference to remain in England, it could not properly be said that they objected to returning to Australia. The father appealed, and the children, though not parties, were given permission to appeal out of time. They said that the word “object” should have been treated as an ordinary English word, but that the trial judge had given it a special meaning.
The Court of Appeal allowed the father’s appeal and said the definition of “objection” advanced by the mother’s barrister in the trial was an unwarranted gloss on the simple words of Article 13. The mother’s barrister had said it was:
“In this [Hague] context an ‘objection’ means a wholesale objection to returning to the country of habitual residence. Invariably such a child cannot think of anything positive to say about that other country.”
The Court of Appeal said the correct approach was that :
“An over-prescriptive or over-intellectualised approach is to be discouraged and that a straightforward and robust process is required. The judge must ask him or herself simply, ‘Does the child object to being returned to his or her country of habitual residence?”
In addition, the Judge’s discretionary exercise was incomplete and too narrowly focused; the range of consideration that enters into the exercise of discretion in such cases is wide.
In particular, it was relevant that the return to Australia may not have endured in the long term. Normally little weight should be attached to this factor, as the return can be achieved speedily, but it was of relevance in this case, where considerable changes had occurred in the period since the children were wrongfully retained. The family home was lost through non-payment of the mortgage.
The children would not easily have been able to take up their former lives whilst the Australian court proceedings took place.
This case highlights the importance of obtaining expert advice on all children issues, especially those with an international element.
How Nelsons can help
Melanie Bridgen is a Partner in our Family Law team.
If you need advice relating to objections from a child in abduction cases or any other family law matter, please get in touch with Melanie or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.