Re M (Minors) (Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Year | 1992 |
| Date | 1992 |
| Court | Family Division |
SIR STEPHEN BROWN, P
Child abduction – children objecting to return after wrongful removal – discretion not to order return – importance of having regard to children's views.
The parents were United States citizens and had lived in California. They had three children. At the time of the present hearing they were aged 11, 9 and 8 respectively. The parents were divorced in 1985. They were granted joint legal care of the children with physical custody to the mother. In June 1989 the mother brought the children to England. The father was not immediately aware of the mother's whereabouts but in January 1990 commenced proceedings in England under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction. He sought the return of the children to California. It was accepted by the mother that her removal of the children from the United States was wrongful within the meaning of Article 3 of the Convention. By Article 12 the court was required to order the return of the children forthwith unless the provisions of Article 13 applied. By Article 13 the court need not order the return of the children if, inter alia, the children objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of their views. The mother gave evidence that each of the children did not want to return. The father had written a letter to the mother and children three days after they had come to England in which he acknowledged hitting the children and losing his temper with them. The President arranged for a court welfare officer to see each of the children separately. She reported that each of them said they did not want to go back to America as the father hit them.
Held – Each of the three children had attained an age and a degree of maturity at which it was appropriate to take account of their views. They each objected to being returned but their views were not determinative of the position. They gave valid reasons for objecting to a return because of the father's former conduct. In those circumstances the court should give effect to their objection and it would decline to order their return.
Per curiam: It was undesirable for an application for children to be interviewed by a court welfare officer to be made on the day of the substantive hearing. Such an application should be made at an earlier stage when the matter was listed for directions.
Patricia Scotland for the father.
Patrick Roche for the mother.
SIR STEPHEN BROWN, P.The court has before it an originating summons issued under the provisions of the Child Abduction and Custody Act 1985, which incorporates the Hague Convention on the Civil Aspects of International Child Abduction. The summons was issued on behalf of the father of three children, the elder boy born on 7 May 1979, a girl, born on 8 April 1981 and the younger boy born on 13 March 1982.
The mother of the children was married to the father but was divorced in 1985. The mother and the father are United States citizens, the mother having been born in the Philippines but at all material times she had lived with the father in California in the United States.
The parties separated apparently in September 1984, but that was not at that time a permanent separation. However, on 11 April 1985 they were divorced in California, and the court made an order granting both parents the joint legal care, custody and control of the three children, with physical custody to the mother, subject to reasonable visitation by the father. It appears that, notwithstanding their divorce, the parties came to live again in the same household, at any rate for some considerable time up to and including 12 June 1989.
On 12 June 1989 the mother went apparently to collect the children from school, as was customary, saying that she was then going to take them on to a party. But she subsequently telephoned the father from the airport, saying that she was leaving with the children. The father was not able to take any effective steps to prevent her from leaving California and she flew to England with the children, where her parents live.
It is in passing to be noticed that she had previously, in 1983, taken the children with her to England, and although she returned herself later that year it was not until December of 1983 that the children returned to California to live again with both mother and father.
The mother has now remarried. She married on 23 December 1989 in England and her husband is an English national. The mother is now expecting a child by her second marriage. The child is expected to be born in September 1990.
The father did not immediately become aware of the precise whereabouts of the mother, but in due course he did become aware of them. There was correspondence between them. A number of letters have been exhibited, which I have read, particularly letters written by the mother to the father. The father finally, in January 1990, with the assistance of his local congressman, a Mr Thomas, got in touch with the relevant authorities and, as a result, the present originating summons was duly issued and the Lord Chancellor, as the appropriate officer of the United Kingdom – as a contracting party to the Convention – has pursued these proceedings, seeking the return of the children to the jurisdiction of California under the provisions of the Convention, which is incorporated in Sch 1 to the Child Abduction and Custody Act 1985.
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Re B (Abduction: Views of Children)
...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, S v S (child abduction) [1993] 1 FCR 12; sub nom Re S (a minor) (abduction: custody rights) [1993] ......
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Re K (Child Abduction: Child's Objections)
...Re [1989] FCR 197; sub nom C v C [1989] 1 WLR 654; [1989] 2 All ER 465. Evans v Evans [1989] FCR 153. M (Minors) (Abduction), Re[1992] 2 FCR 608. M (Minors) (Child Abduction), Re[1994] 2 FCR 750. NB (A Minor) (Abduction), Re [1992] 1 FCR 271; sub nom B v B (Abduction: Custody Rights) [1993]......
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S v S (Child Abduction)
...of Article 13 which related to the child's objection to being returned were to be interpreted literally: see Re M (Minors) (Abduction)[1992] 2 FCR 608. There was no warrant for importing the gloss that the child's objection imported a strength of feeling far beyond the usual ascertainment o......