A judicial dilemma by John Bolch

Children|Family | 12 Mar 2014 7

A recurring theme of my posts here has been the difficult decisions which our family court judges regularly have to make. Another example popped up just this morning.

The case was Re R (Children: Temporary Leave To Remove From Jurisdiction). It concerned, amongst other things, an application by the mother for permission to take the four children of the family on holiday to India for two weeks during the Easter school holidays.

The parents went through an arranged marriage in India in 2005. The father has lived in England all his life. The mother lived in India until the marriage and for a short while thereafter, before coming to England to live with the father.

The marriage broke down in 2011 and the mother moved out of the family home, taking the children with her. The father then applied for contact, and those proceedings have been going on ever since.

Last year the mother indicated that she wanted to take the children to India to visit her family. She therefore applied to the court for permission to take the children to India for two weeks at Easter. The father opposed the application, saying that he did not trust the mother to return the children to this country.

The case went before Judge Bellamy in the High Court. His big problem when considering the mother’s application was that India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. If it was, then should the mother fail to return the children the father could make an application under the Convention for them to be returned. The Convention provides a clear procedure and usually requires children to be returned to the country where they normally reside.

The father had done his homework and produced evidence for the court pointing out the difficulties with which he would be faced if he had to seek the return of the children from India. The courts in India are under no obligation to uphold a UK court order, so he would be left having to take proceedings in India, with all of the stress and expense that would involve.

Judge Bellamy was satisfied that the father’s fear that the mother would not return the children was genuine, and not simply an attempt to control the mother. He also found that the risk of the mother failing to return the children was low. However, the consequences of her failing to return them were potentially very serious for the children. Further, there were no real safeguards that could be attached to the permission to ensure that the mother returned the children.

So that was the dilemma faced by Judge Bellamy. On the one hand, he acknowledged that there clearly were benefits to the children in allowing their mother to take them to India. On the other hand, the consequences of them not being returned were great, and there were no real safeguarding measures available.

In the circumstances Judge Bellamy decided that it would not be in the children’s best welfare interests for permission to be granted. The mother’s application was therefore refused.

Some may say that this was an easy decision – that in such cases, permission should always be denied. However, there is of course no such rule. All such cases must be decided on their own merits, with the welfare of the children being the paramount consideration. The judge must balance the benefits against the possible consequences, and that is rarely an easy task.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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    1. Stitchedup says:

      Classic risk management, family judges are not the only ones that have to do this.

    2. Anon says:

      Shouldn’t they have asked what the children wanted before declaring what was in their best interest? In many of the family court cases I have read the court usually includes the thoughts of the children in the final matter of making a decision.

    3. Luke says:

      “India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.”

      That’s all the Judge needs to hear.

    4. Stitchedup says:

      “Shouldn’t they have asked what the children wanted before declaring what was in their best interest?” No. not necessarily, what children want is not always in their best interest. There’s also the issue of brain washing to take into account.

    5. Rufus says:

      Also, the older the children, the easier it is to ascertain their true feelings and wishes. The children are all 7 and under so the court would not consider that their vocal wishes carry much weight.

    6. Anon says:

      It still doesn’t explain the complete absence of the thoughts of the children. Whether it carries little weight or not it is unusual in the family court to not include the wants of all parties involved. As for the attempted brainwashing I think if that were the case some mention of it would have come up. I am not siding with the mother or the father I am merely stating that I believe that the views of the children even if young should be taken into account when it concerns their best interest.

    7. Paul says:

      Family courts are legally obliged to consider the ‘wishes and feelings’ that children may express. It’s part of the Children Act welfare checklist. However, it’s a fraught issue as all too often children’s views are subject to unscrupulous manipulation, usually by the resident parent. Often the manipulation is too subtle for independent observers to work out or they deliberately overlook it, and that’s when a father gets truly shafted in court.

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