A British woman who emigrated to Canada has won a legal victory over her estranged husband, after he abducted their children and took them back to the UK.
The case of FT and NT (Children) concerned a couple who married in 2007. They had two daughters, referred to as FT and NT in court reports, who were born in 2008 and 2010 respectively. In April 2008 the parents applied for permanent residency in Canada and this process was finally completed in May 2010. Two years later, in August 2012, the family emigrated.
Both parties intended the move to be permanent, but according to the judgement, the father was less enthusiastic than the mother: “…he says he had reservations and ‘had always made (the) decision conditional upon (them both) finding jobs, being settled and happy.’ ”
Just a few months into their new life, however, the couple separated. They agreed an arrangement by which each parent would look after the children on alternating weeks.
The in January this year, the mother discovered that the father had taken the children’s passports. She was alarmed but he insisted that he had no intention of taking the children abroad without her consent.
The following month the mother agreed to let the father take the children to a lake for a visit. But despite an exchange of friendly messages with her husband, she received a text from him the following day saying that he had in fact returned to England with the children. Although he initially implied that he intended to return, he later stated that their daughters would:
“…only return to Canada if and when (his) solicitor instructs (him) to but until that time they will stay in the UK.”
At the beginning of last month, the mother applied for return of the children, under the Hague Convention on the Civil Aspects of International Child Abduction, an international treaty which allows the swift return of children abducted from one signatory country into another.
A central concept in the Hague Convention is ‘habitual residence’, a legal term for a person’s home, the place where they usually live.
The father argued that there had in fact been no abduction. His legal team claimed that the children’s habitual residence remained in Yorkshire because the couple had separated less than three months after their move.
However, sitting in the Family Division of the High Court, Mrs Justice Pauffley rejected that argument. She considered the detailed and in-depth preparations the family had made for their move to Canada and concluded that “…there really can be no other conclusion but that these two children were indeed habitually resident in Canada at the time of their removal to this country on 18th February.”
Such a conclusion was “indisputable”, she added.
The mother’s application for the return of the children was granted. The judge said of the father:
“It’s often the case that parents like Mr T have a rude awakening when they come to know how the Hague Convention operates. He may have been surprised by the pace of these proceedings which, from the children’s perspective have been mercifully swift – 5 weeks from the application’s launch to final hearing.”
“My message for him is that….parents always have choices. There is a right way to resolve differences about how, where and with whom children should be raised and there is a wrong way. Mr T chose to take the law into his own hands by unilaterally removing the children from Canada and from their mother. He had no right to take the decision to bring the children here. In so doing he has caused the mother immense distress and enormous anxiety as surely he must have known he would. There will have been a considerable emotional cost as well for the children who have never before been away from their mother for such a protracted period. The sooner he is able to see the harm he has done and to express real remorse for his actions, the better will be the prospects of rebuilding trust between himself and the mother. Unless he embarks upon that exercise very soon, the chances for him of continuing his warm and loving relationship with the children almost certainly will suffer.”