Mother ordered to return her son to Australia

Family Law|November 20th 2014

The High Court has ordered a woman living in the UK to return her son to his father in Australia.

C v S concerned ‘L’, a 14 year-old boy born in 2000 to British parents. They had begun a relationship in 1997 but did not marry before their separation in 2003. After the split, L lived with his mother but saw his father regularly.

In 2007 his father moved to Australia after meeting an Australian woman during an earlier trip. They married and now have two other children. He is now ‘habitually resident’ (resident for legal purposes) in Australia.

Meanwhile, L’s mother also married and had two children, and she also moved to Australia with her new husband and family, including L, after her new husband found work in the country the following year. There L began to attend school and continued to see his father and the latter’s new family, staying with them once a month.

The mother, her new husband and the children came back to England in 2011 for work, but did not return to Australia till the following year. The mother was reportedly reluctant to go.

At the end of 2013, she and her second husband, referred to as ‘H’, separated and divorce proceedings began, although L’s father did not initially hear about this.

In May this year, L’s maternal grandmother visited and invited her daughter to come back to England with her for a holiday. She accepted, travelling back to England a few weeks later.

Sitting at the High Court, Mrs Justice Pauffley declared that:

“The mother came here for a supposed holiday which turned into a plan to remain within days of their arrival.”

Retaining L in England amounted, said the Judge, to “flagrant abduction”.

The mother claimed she had explained her decision to move to the UK following her divorce to L’s father, but subsequent email correspondence between the two suggested otherwise said Mrs Justice Pauffley.

The father and his family insisted that they were “devastated and shocked that (the mother) left Australia … without even a phone call.”

In an email to his former partner, L’s father wrote:

“…you should still have consulted with me as (L’s) parent before leaving the country as I would not have given you my permission …”

There was no question, said the Judge, that the father had no knowledge of the mother’s plans before her departure.

L’s father applied for his return under the Hague Convention on the Civil Aspects of International Child Abduction. As the name suggests, this international treaty is concerned with the abduction of children by a parent from one signatory country into another. It provides a fast-tracked legal mechanism for their return.

L’s mother mounted a defence to the applicaiton under Article 13 (b) of the Convention. This states that the state to which a child has been taken need not return them if

“…there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

However, Mrs Justice Pauffley noted that the L had a relationship with his father throughout this life and said it was “really quite impossible to conclude that a return into the father’s household” would place him in an “intolerable situation” as defined under the Convention.

The mother also claimed that L objected to returning to Australia. But after examination of the interviews in which the boy had supposedly said this, the Judge concluded that his objections were half-hearted and not sufficiently strong for a successful defence under the Convention.

Mrs Justice Pauffley declared:

“[The mother] had decided what she wanted for herself and what was in L’s welfare interests and was determined to secure her objectives irrespective of the father’s reaction. The father’s emails tell their own story of shock, distress, even incredulity in relation to the events of June.”

Read the full judgement here.

Last year, the High Court granted an Australian woman permission to return to her native country with her children despite the fact that she had previously abducted them.

Photo of the Australian flag by Timothy Swinson via Flickr

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