A High Court judge has thrown out a mother’s bid for the return of her son to Australia.
In CB v CB, the woman, an Australian citizen living in the UK, had a child with a British man. After their separation, the boy lived with his mother in the UK, and had contact with his father. The mother also travelled extensively, taking the boy with her. In 2010, the father agreed to the boy staying with his mother in Australia for a year. She later requested a further year in the country and she agreed to this, but reluctantly. When she later requested a further two years, however, he refused. At the end of a Christmas visit, the father refused to send his son back to Australia, saying he wished to stay in the UK with him.
The mother than came back to the UK and filed a claim for her son’s return under the Hague Convention on the Civil Aspects of International Child Abduction, an international treaty governing the return of children from one country to another.
Family Division judge Mr Justice Peter Jackson concluded that the boy’s habitual residence for legal purposes was Australia, and the father had, therefore, on the face of it been wrong to keep in the UK at the end of the trip. However, the boy expressed a clear wish not to go back to Australia with his mother and his legal guardian argued that he was sufficiently mature to express rational and balanced views, and the court should take these into consideration.
The judge concluded that while Australia was technically the boy’s habitual residence, he not have strong ties to the country and the father’s decision had been made as a result of complex family circumstances which should not be treated as an abduction. He therefore dismissed the woman’s application for her son’s return and said his welfare should in future be considered by the English courts.
What concerns me here is the father was very reasonable in originally allowing the mother to have the child in Australia for a year and then another year and this was used against him when deciding habitual residence! It was only because the boy issued a preference for the UK that he was allowed to stay here. The father had to effectively forcibly keep him in the UK.
Basically the decisions of judgements like this means that being reasonable is a bad idea – it encourages one to be difficult to get fair treatment in court.