Re B (Abduction: Views of Children)
| Jurisdiction | England & Wales |
| Judgment Date | 1998 |
| Year | 1998 |
| Date | 1998 |
| Court | Family Division |
Child abduction – Children habitually resident in Ireland – Mother wrongfully removing children to United Kingdom twice – Children objecting to return to Ireland – Whether amounting to exceptional circumstances enabling court to refuse to order their return.
The parents, who were Irish citizens, married in 1985 and lived with their two children, now aged 12 and 7, in Ireland. Following the parents’ separation in 1995 admidst allegations by the mother that there had been frequent serious domestic violence in front of the children, the mother and children travelled to London and found shelter in a refuge. The father commenced proceedings for their return under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985. At the hearing it was conceded that their removal was wrongful and an order was made for her to return the children to Ireland. However the mother failed to comply with that order and they disappeared from the refuge. Unbeknown to the father they obtained a housing association house and the children attended local schools. In 1997 upon the mother and children returning to Ireland to care for her mother who had fallen ill, the children were enrolled in local schools and had weekly two hourly contact with the father. However, in June 1997 the mother and children returned to the United Kingdom and the father again issued an originating summons seeking their return under the Hague Convention. The children were interviewed by the court welfare officer and expressed a preference for remaining in London as they were doing well at school and were enjoying a happy social life. Whilst they said they would be pleased to go on holiday in Ireland to see their wider family, they were reluctant to see their father as they had unhappy memories of him drunk assaulting their mother and thought he wanted them back in Ireland to make their mother look a fool. On the basis of those interviews the welfare officer concluded that their cognitive and physical and emotional development were appropriate to their years and that throughout they were expressing a clear wish to remain in England. The mother relying on art 13, which provided that the judicial authority could refuse to order the return of the child if it found that the child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of its view, contended that the children should be allowed to remain in London.
Held – Where there was evidence to support the view that a child had obtained an age and degree of maturity at which it was appropriate to take account of his views, the court had a discretion to refuse to order his return to the country of
habitual residence following his wrongful removal. One of the factors to take into account was the fact that a parent had wrongfully abducted the child and any attempts to deliberately evade and indeed defy any order of the High Court to return him. Whilst it was indeed a very exceptional case in which such conduct and any such defiance would not result in an order being made adverse to the interests and wishes of the party who had been at fault, the court was entitled to take into account not only the child’s reasonable objections, but also his general welfare. In the unusual circumstances of the instant case, the welfare of the children, where they had become well and firmly established in England during the last two and a half years, would not be advanced by a return to Ireland. Accordingly the originating summons would be dismissed.
Cases referred to in judgmentAkbarali v Brent London BC, Abdullah v Shropshire CC, Shabpar v Barnet London BC, Shah v Barnet London BC, Barnet London BC v Shah [1983] 2 AC 309, [1983] 1 All ER 226, [1983] 2 WLR 16, HL.
J (a minor) (abduction: custody rights), Re [1991] FCR 129, [1990] 2 AC 562, [1990] 3 WLR 492; sub nom C v S (minor: abduction: illegitimate child) [1990] 2 All ER 961, HL.
KM (a minor) (habitual residence), Re[1996] 2 FCR 333, CA.
M (minors) (abduction), Re[1992] 2 FCR 608.
M (minors) (residence), Re[1993] 1 FCR 718, CA.
S v S (child abduction) [1993] 1 FCR 12; sub nom Re S (a minor) (abduction: custody rights) [1993] Fam 242, [1993] 2 All ER 683, [1993] 2 WLR 775, CA; affg[1992] 2 FCR 113.
SR (a minor) (abduction), Re[1992] 1 FCR 101.
Originating summonsThe father of two children aged 12 and 7 issued an orginating summons seeking an order under Sch 1 of the Child Abduction and Custody Act 1985 ordering the return of the children to Ireland following the wrongful removal in 1995 and 1997 by the mother. The case was heard and judgment was given in chambers. The case is reported by permission of Stuart-White J. The facts are set out in the judgment.
Tahera Ladak (instructed by Judith Walker Tayar & Co) for the mother.
Jeremy Rosenblatt (instructed by Osmond Gaunt & Rose) for the father.
STUART-WHITE J.These proceedings under the Child Abduction and Custody Act 1985, and the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Hague Convention), concern J who is nearly 12 and A who is I think, 7. They are the children of the marriage of Irish parents and they were born and brought up in Letterkenny, County Donegal. The father by his originating summons dated 15 August 1997 alleges that the mother wrongfully removed the children to England on or about 9 June 1997 and he seeks a peremptory order for their return.
The facts of the case are somewhat unusual and neither my researches nor those of counsel have revealed any reported case in which precisely the same issues arise.
The mother and the father married in July 1985 but their relationship had begun early in the previous year. A child had been born in October 1984 but was brought to England and adopted here. The mother and the father were married in Ireland where both children were subsequently born. They separated in April 1995. The mother alleges that there had been frequent serious domestic violence, usually when the father had been drinking. The father alleges that the mother had begun a relationship with another man and it has not been necessary, nor, indeed, upon the evidence available and the time available for the hearing of these proceedings, has it been possible to reach a conclusion as to where the precise truth lies about those matters. It may be, and I say no more than that it may be, that there is some truth on both sides.
On 10 May 1995 the mother took the children to London and went with them to stay at the London home of the man with whom the father has alleged that she had a relationship. She sought and obtained in London an ex parte interim residence order. The father commenced proceedings under the Hague Convention.
Those proceedings came for final hearing before Connell J on 7 September 1995. At that hearing it apparently was conceded that the removal of the children had been unlawful, or...
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