Relocation and responsibility: two children’s cases by Danielle Day

Children|Divorce|Family Law|Stowe Family Law|March 4th 2013

The recent case of Re RC and JC concerned the abduction of two young children aged two and three.

The mother was Australian while the father is British by birth but is a permanent resident of Australia. The parties married in Australia and lived in Melbourne until 2010 when they returned to the UK. The family were living in Eastbourne in rented accommodation at the time.

The marriage of the mother and father ran into difficulties and the father asked for a divorce three days prior to the abduction on 12 May 2011.

On the morning of 12 May, the mother had left the house with the children after breakfast. The father was unwell and he thought that the mother had dropped the children off at nursery before going to work as a dental nurse. The father later learned that the children had not attended nursery as the mother had phoned to say they were unwell. The father called the dental practice to speak to the mother and was told that she had attended in the morning to say that she was leaving to go back home to Australia. The Police were called and it was soon discovered that the mother had taken the children onto the 3pm flight to Melbourne the same day.

The father made an application under the Hague Convention on the Civil Aspects of International Child Abduction for the return of his children. The mother argued that the father had consented to their removal and that there was a grave risk that the children would suffer physical or physiological harm if they were returned to the UK. The original judge ruled that at the time the children were removed they were not ‘habitually resident’ in the United Kingdom, as defined by the Convention, and the father’s application for their return was therefore dismissed.

However, he was granted permission to appeal and the case was listed for a hearing on 30 July 2012. The courts ruled that the judge had erred in her application of the domestic law concerning ‘habitual residence’.

On the day of the hearing the mother suddenly dropped her case and agreed to return with the children. However, the children returned on 23 August 2012 without her. Then on the 29 September 2012 the mother applied to the Principal Registry of the Family Division in London for a residence order – ie an order that the children live with her; a contact order allowing the father to visit; and a ‘specific issues order’ which would allow  her and the children to relocate to Australia.

Her applications were heard on the 14 and 15 February 2013. The Cafcass officer described the case as very difficult and unprecedented and could not make a clear recommendation to the court.  The judge found the mother to be sincerely remorseful and said that she recognised her behaviour was extremely poor.

Mr Justice Mostyn eventually concluded the mother would be less well equipped to face challenges were the children to stay in the UK than if they returned to Australia. In considering whether to permit the mother to return to Australia, the court considered the list of welfare considerations found in Section 1 (3) of the Children Act 1989, as well as the guidance from the case of Payne v Payne.

The judge said that while he had great sympathy with the father he had to resist the temptation to punish the mother for her actions. The Judge granted the mothers application to take the children to Australia.

Mr Justice Mostyn did however recognise that the mother’s behaviour was “abysmal”, saying:

“Child abduction seldom, if ever, has a happy ending. It has rightly been described as a form of child abuse… It was an act of deliberate cruelty to her husband, the father of her children. It was directly contrary to the interests of the children for them abruptly to have been removed from the society of their father. It has subjected them to two years of uncertainty while they have been taken across the world, back and forth. It has embroiled all members of the family in extensive litigation with days in court in both countries. It has brought the mother to the brink of bankruptcy. Yet it has not been until very recently that the mother has developed any self-awareness. Her attitude was “I did not abduct them; I just took them home”. “

He noted that had the mother simply applied for leave to return home, rather than abduct the children, it was likely he would have granted permission and the entire trauma could have been avoided.

Meanwhile, Re W  concerned an application by a father for both contact with his child and a declaration of ‘parental responsibility’.

The case  concerned a six year old boy whose parents separated before he was born. The father had regular contact for the first 18 months of the child’s life, but later lost touch. Then when the child was six years old the father applied  for contact. A Cafcass report was ordered.

The Cafcass officer firmly recommended that the mother had such a fear of the impact contact would have on the child that the harm or risk of harm to the child could not be contemplated. Therefore there should be no contact with the father, the officer advised.

While the officer recognised that there was no objective foundation for the mother’s anxiety, the court rejected both the father’s applications. It said the mother had such a real fear of the father playing a part in the child’s life that it would affect the child’s future stability and wellbeing. The father appealed.

The father’s first appeal was dismissed as the judge found that there was no existing relationship between the father and the child beyond their biological connection.

The father made a second appeal, arguing that the court should not have elevated the mother’s subjective concerns to the extent that they would prevent normal contact between a father and child.

The Court of Appeal referred to the case of Re C and V (minors). In that case it was held that applications for contact and parental responsibility were wholly separate and involved distinct questions which needed to be examined from different perspectives.

Lord Justices Thorpe, McFarlane and Davis held the original judge should have been more rigorous in his analysis and reasoning. They said the claim that the father had no more than a biological link was unfair.

The father’s appeal against refusal of parental responsibility was allowed while the appeal against the refusal of contact was dismissed.

We can conclude from this and other cases that judges will grant parental responsibility  unless there are significant reasons not to. In judicial statistics from 2011, we find  that parental responsibility was granted in 98 per cent of cases.

Danielle Day read Law at Bradford University and went on to complete her Legal Practice Certificate at the College of Law in York, where she gained a Distinction.

With a longstanding interest in family law, Danielle Day first came to Stowe Family Law on a work experience placement  in August 2011. She joined the firm as a trainee in October 2011, and looks forward to specialising in ancillary relief matters.

Danielle Day has a keen interest in music and has been a member of the Dearne Big Band for the past seven years playing the trumpet.

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