Re W (Minors) (Child abduction: Unmarried father) ; Re B (A Minor) (Child abduction: Unmarried father)
| Jurisdiction | England & Wales |
| Judgment Date | 25 March 1998 |
| Date | 25 March 1998 |
| Court | Family Division |
Family Division
Before Mrs Justice Hale
Children - child abduction - limited rights of unmarried fathers
The removal of children by their mother from their habitual residence within in the jurisdiction was prima facie wrongful within article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 where the father had parental responsibility, or there was a court order in force prohibiting removal, or there were relevant proceedings pending in a court in England and Wales.
But absent those conditions, there was nothing in English domestic law to prevent a mother with sole parental responsibility from removing her children from the jurisdiction.
Mrs Justice Hale so held in the Family Division in a reserved judgment handed down in chambers but reported with leave on condition that the parties were not identified, when (i) granting the unmarried father's application, in the first case, under article 15 of the Hague Convention, as set out in Schedule 1 to the Child Abduction and Custody Act 1985, for a declaration that the removal of the children involved had been wrongful within the meaning of article 3 of the Convention and (ii) when refusing to grant such a declaration to the unmarried father in the second case.
Mr Ian Karsten, QC and Mrs Deborah Taylor for the fathers in both cases; the mother in the first case did not appear and was not represented; Mr Anthony Kirk for the mother in the second case; Mr Michael Nicholls as amicus curiae in both cases.
MRS JUSTICE HALE said that in these two cases, heard together for convenience, two unmarried fathers were seeking declarations under article 15 of the Hague Convention that the removal of their children from the jurisdiction was wrongful within the meaning of article 3 of the Convention.
In the first case, the father had applied to the local family proceedings court for parental responsibility and contact and residence orders. Agreement between the parents resulted in the father withdrawing his residence order application in return for agreed interim contact.
That worked well for six months and the final hearing was listed for mid-September 1997. At that hearing a parental responsibility order was made in the father's favour but by then it was too late as the mother had left with her husband and the children for Australia a...
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