Boy successfully objects to returning to his father in the US

Children|Family Law|April 22nd 2013

Airport signAs 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.

Re H concerned a boy now aged 12. He was born in Wales to an English  mother and American father. Not long after his birth, the family moved to Florida, where his parents were married.

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

Author: Stowe Family Law

Comments(6)

  1. Observer says:

    It doesn’t seem like anyone is reading this blog any more, and little wonder.

    First you post this story as if it is a triumph. (It is in a way though – a triumph for the alienating parent! But that is hardly something to celebrate, unless one happens to condone that sort of behavior.)

    Second you refer to this idea of a ‘stuck mom’ without any sense that dad is stuck too.

    I know you are writing from your own perspective, but one would have thought a lawyer might be able to look at things from more than one point of view.

  2. Observer says:

    Needless to say, I didn’t even bother reading.

    • Marilyn Stowe says:

      Hi Observer
      You are wrong:- the blog is getting almost 50,000 hits per month and growing!
      Regards
      Marilyn

  3. Cyam says:

    Hi what is your view in relation to – ‘International provisions relating to the abduction of children can only partially be effective because of the different interpretations placed on a countries obligations’ – what do you think?

    i am a genuine follower of your blog and interested in what your argument would be.

  4. reader says:

    I did not sense any triumph in this article, and I am sure that “Observer” above is projecting in the psychological sense. What is unique about this case is that a Hague case seems to have been argued on the merits instead of the child being instantly returned with no objections permitted? I thought you were not supposed to do that. And a boy of age 11 actually had his opinion listened to by a judge. Lucky for that little human being that his own wishes were taken into account, for once. All too often the judges automatically assume brainwashing in all cases, as if children have no preferences of their own. This has led to children being returned to abusive or neglectful situations. I think this is a step in the right direction. Often these spouses leave for good reason. The left-behind parent is not always a completely innocent party who did well by his or her family.

  5. Optimistic says:

    The mother is not wrong to say she will not return to the US, a half sister was mentioned, the mother has more than one child to care for and cannot be expected to dance to the fathers desires. In the end the father too can move to Wales/UK/Europe to be closer with his son….to do it for his son it may mean a change in job, less money his ex will have to accept the economic loss of maintenance payments if she receives any.. These cases are terribly difficult but two people going their separate ways have to in the end agree to share the children and be prepared the child may want to live more with one parent than the other and even change their mind later on to go live with the other, then they have to decide to move for their child to stay close to them…huge sacrifices to spend family time or work on having the children visit whenever they can. The childs happiness, stability and future prospects to grow into a well rounded adult is more important in these cases. One parent is bound to lose out more than the other, in international cases there will always be a desire by the mother to go home to where she feels safe and supported and protected. It can be about running away from the other partner too, but that partner has a right to move too and take a job closer to where their children will be and contact rights should always be protected. You cannot chop children up 50-50 they arent objects. The law may think 50-50 is fair to the children but often it creates more problems than it solves. A fluid approach is needed, often children younger need their mother most, the maternal love and care, routine perhaps a new grownup in their life nto to replace the father but to give the day to solidity they need, then as they grow they need their father to show them different approaches to things and as they grow they may choose to go and live with their father for a year or two which will hurt their mother terribly but has to be accepted. In my own case I have always been the main income earner but also carer of my children, we worked as a team but money he earnt was invariably spent on his projects and hobbies I covered the mortgage and the bills, the holidays and the lifestyle. He has chosen to stay in one location because he found a new love and he doesnt work in a well paid job (he has the skills and ability) because he would have to pay me some money for the childrens costs and he feels I do not deserve this (he does not consider a financial duty towards his children only his rights as a father). I view my childrens rights to their father but also feel the unfairness in his approach that I still am left to carry the whole burden. He would perhaps be delighted if I gave the custody of children to him and paid him to take care of them….but I feel he will not care for their day to day needs as well as I do. Does he have a right to stop me from moving away to seek a better position for myself and the children so we are financially secure because of his fathers rights, but he does not consider his duty as a father to his children to help provide financially for them? In the end if a judge decided they had to stay with him I would be mortified but I also have to consider, they would survive, and I have noone to pay my pension or take care of me when I get old, I need to provide for myself and hopefully so I can also be there for my children. I have a very strong maternal instinct but should I in that case just allow it and leave them to gain the financial independence I know I will need and they will need. Or stay and find myself and my children always in poverty, missing out on a lot of advantages in education or otherwise, in our case away from all our extended family his and mine. And I would also be away from my new strong and supportive relationship which provides the stability of a family unit my children do best in. No one can win in this situation but what is best for the children? Economic poverty for them and me and single parent unit to stay and have their father visit when he has the money. Go and give them a family life and stability and financial independence and advantages so when they are grown they will more likely be successful adults?…leaving their father to do what fathers do best just be as he is completely different to me and in his way showing them another path through life. At no time would I stop contact and I would try to assist it whenever possible and accept the children may choose to go live with him when they are older.

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