As an experienced family lawyer, I always advise people to be very cautious about having children in multinational relationships. If you have no kids and the relationship sputters out as plenty do, you can simply go your separate ways and even return home to the UK if you wish. But once children have arrived on the scene, complexities and heartache are almost guaranteed if the marriage breaks down or the relationship falters.
You may end up a ‘stuck Mum’, unhappily hanging around in a foreign country, wanting to return home after the painful end of your multinational relationship, but unable or unwilling to leave your child with your former partner. The only real – but illegal – alternative to that unpalatable situation is to ‘do a runner’ and wait for the law to take its course. This is strict in many countries – taking a child from one country into another without the consent of the other parent is abduction.
The Hague Convention on the Civil Aspects of International Child Abduction is a frequent topic here and it is a central piece of legislation in global children’s law, one we regularly grapple with here at Stowe Family Law. This international treaty, which originally came into force in 1983, provides a convenient legal instrument to accelerate the return of children abducted across borders by fugitive parents. Used correctly and efficiently, it can bring blessed relief to frantic Mums or Dads whose children have been snatched away, as well as justice to the stubborn, selfish or desperate who thought they could get away with taking the law into their own hands. However, judges do have the discretionary power to refuse applications under the Hague Convention if they believe the circumstances warrant this.
A recently published case throws the spotlight onto one often forgotten aspect of the Hague Convention: the views of the children themselves. Assessing the view of youngsters caught up in such cases is tricky and takes real skill. Experienced judges are well aware such children may be under a lot of parental pressure and therefore not reliable witnesses to their own true feelings.
By 2012 the marriage had begun to break down and the couple discussed divorce. The woman asked H, by then 11 years old, whether he wished to return to the UK with her and J, his half sister, or stay with his father “even though I had grave concerns about leaving him in the US”.
H decided to come back to the UK with them and so, in August 2012, the three left the family home. The mother admitted:
“It is true that we left through a bedroom window as the [father] sleeps in the lounge, which is where the front door is.”
Back in Britain, the family once again settled in Wales, while the father, predictably, launched proceedings under the Hague Convention. The mother’s defence when his case duly came to court was that H did not wish to return.
To quote the judgement:
“It is her case that H objects to being returned to the USA and that he has attained an age and degree of maturity at which it is appropriate for the court to take account of his views. She invites the court to exercise its discretion to refuse an order for H’s…..return.”
Sitting in the Family Division, Judge Clifford Bellamy concluded that the boy’s concerns about returning to the US, discussed with a Cafcass officer, were “real, rational and reasonable”. His objections centred around a reportedly difficult relationship with his father, who he saw as angry and controlling. He also reported a wider circle of friends in Wales and said he enjoyed the broader curriculum at school.
The judge was clear in his ruling that for H, living in America was synonymous with living with his father. Although there were concerns that H’s mother may asked him leading questions, the judge concluded that the boy’s objections were genuine ones and not purely the product of his mother’s influence. He therefore ruled against the father.
While reading the ruling I was struck by Judge Bellamy’s clear distaste for the mother’s statement that she would not return to the US with H, even if the courts ruled that he must go. For him this was “particularly unattractive” and taking this into consideration would “be tantamount to allowing a parent to hold a pistol to the judge’s head.”
The judge continued:
“As a matter of principle, that is an approach which should never be allowed to succeed.”
Quite right. Angry, Hague-embroiled parents take note!
Photo by faz besharatian via Flickr under a Creative Commons licence