B v K (Child Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Year | 1993 |
| Court | Family Division |
JOHNSON, J
Child abduction – three children wrongfully removed from Germany – application for return of children – two elder children aged 9 and 7 objecting to return – court exercising discretion not to return – youngest child too young for court to take account of his views – effect of ordering youngest child's return without elder children – discretion of court not to order return of youngest child.
The parents were married in England in 1981. In 1986 they went to live in Germany. There were three children of the family. In December 1990 the mother came to England with the children. The father applied under the Hague Convention on the Civil Aspects of International Child Abduction for the return of the children to Germany. The mother objected to the return of the children.
Held – On an application under the Hague Convention the general principle was that in the ordinary way any decision relating to the custody of children was best decided in the jurisdiction in which they had been normally resident. The mother had objected to the return of the children on the grounds that there had not been a breach of custody rights and that the father had consented to the children's removal from Germany, but those objections would be rejected. Although she had at one stage said she would not return to Germany with the children, the mother now said that she would do so if their return was ordered. As the children would remain in the care of the mother until a German court otherwise ordered, it could not be said that the children would be placed in an intolerable situation if they were returned to Germany. However, the two elder children, who were aged 9 and 7 had made it clear, through the welfare officer, that they did not wish to return to Germany. They were of an age and degree of maturity at which it would be appropriate for the court to take account of their views. In the circumstances, the court would exercise its discretion under Article 13 of the Convention and would not order the return of the two elder children. The youngest child was too young for the court to take account of his views, so there would be no sustainable objection to his return on this ground. However, he would be devastated if separated from the two elder children. Consequently, it could be held that he would suffer psychological harm and be placed in an intolerable situation if he were returned to Germany and the two elder children were not. Therefore, it would be ordered that the youngest child also should not be returned to Germany.
Statutory provisions considered:Child Abduction and Custody Act 1985, Sch 1: Convention on the Civil Aspects of International Child Abduction, Articles 3, 12, 13 and 19.
Cases referred to:F (A Minor) (Abduction), Re [1991] FCR 227.
N (Minors) (Abduction), Re [1991] FCR 765.
Clare Renton for the father.
Sonia Gal for the mother.
MR JUSTICE JOHNSON.This is an application by a father under the Child Abduction and Custody Act 1985, which brings into effect in English law the provisions of the Hague Convention, signed at The Hague in 1980. It relates to three children. Their father is German by birth, but was brought up by his family in England. The mother, I have been told, is herself part German, having a German father and an English mother. She too was brought up in England. The parents married in England on 25 July 1981 and lived here until May of 1986, when they moved to live in the Federal Republic of Germany. The parents and the three children remained there until 1 December 1990, ie for four-and-a-half years.
On 1 December 1990 the mother removed the three children from the Federal Republic of Germany and came to England with the children. Her reasons for doing so are set out in her affidavits, in which she makes serious allegations against the father. I am unable, and do not wish, to make any findings about the validity or otherwise of the mother's complaints, and I put them out of my mind entirely.
At Christmas time the mother sent a Christmas card to the father in which she said, "Dear Michael, We do all love and miss you. Please try to understand me.
Please give us six months. We really need this time apart and I know we can work things out. Love from Margaret." The card was then signed by...
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