No summary return principle in internal child ‘abduction’


October 27, 2016

Source: marilynstowe.co.uk

One of the biggest fears for a separated parent, particularly the parent with whom the child is not residing, is that the other parent may try to abduct the child to another country.

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Close behind this, I suspect, is the fear that the other parent may simply move the child a long way away, without actually leaving the country, thereby stretching or even severing the connection between the ‘remaining parent’ and the child, and putting that parent at a serious disadvantage in any subsequent proceedings concerning arrangements for the child.

Of course, if there has been an international child abduction and the child has been removed to a country that is a signatory to the 1980 Hague Convention on Child Abduction then the remaining parent can seek the summary return of the child to its home country, where the courts will decide what the future arrangements for the child should be. However, should the courts take a similar approach to an internal ‘abduction’, ordering that the child be returned to where it lived before it was moved, before proceeding with the case?

That was the question that fell to be determined by the Court of Appeal in the recent case Re R (Child).

The facts in Re R were that the parents began living together in Kent in 2013 and the mother gave birth to their son in June 2015. The relationship, however, soon broke down and on 11 January this year the mother left the family home with the child and, without the father’s knowledge or consent, took him to the North East, where her parents live. She maintained that she had done this because the father had been abusive towards her.

The father applied to the court for a preliminary order that the child be returned to the family home, pending the outcome of proceedings concerning arrangements for him.

The father’s application was dismissed by the District Judge. Importantly, the parties had agreed that the child would live with the mother during the course of the proceedings, and the District Judge was concerned that forcing the mother to move back to Kent might have a detrimental effect upon her wellbeing, which may well have an impact upon her ability to care for the child. He rejected the father’s argument that the court should take the same approach as in an international abduction case and order the summary return of the child. Instead, he simply approached the case on the basis of what was best for the child’s welfare, concluding that his welfare would be best served by the child remaining with his mother in the North East.

The father appealed the District Judge’s decision, but his appeal was dismissed. He appealed again, to the Court of Appeal.

The Court of Appeal found that there was no principle in an internal ‘abduction’ case that the child should be summarily returned. The matter of whether or not the child should be returned should be decided on the basis of what was best for the child’s welfare. In some cases the court may decide that it is best for the child’s welfare for him to be returned, in other cases it may decide that it is best for his welfare that he is not returned. The principles behind the Hague Convention have no application. (Indeed, on an abduction to a non-Hague Convention country the matter of whether the child should be returned would be determined by reference to the child’s welfare.)

The only matter left for the Court of Appeal to decide was whether the District Judge had erred in his decision as to what was best for the child’s welfare. The father had argued, for example, that the District Judge gave too much weight to the allegations that the mother had made about the father and her alleged anxiety about returning to Kent. However, the Court of Appeal was not prepared to interfere with the District Judge’s decision, finding that he was entitled to conclude that moving back to Kent may have an adverse impact on the mother, and therefore on the child.

The father’s appeal was therefore dismissed.

You can read the full report of the case here.

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