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Court dismisses mother’s return appeal

The High Court has dismissed a mother’s appeal against a refusal to return her son to Spain.

U-B (A Child) concerned a boy referred to in the judgement as ‘E’, who is now 14 years old. His parents separated when he was just as 18 months old. E lived in Spain with his mother but regularly travelled back to England to see his father for “quite long holiday periods”. In July last year, he travelled to the UK once more to stay with his father and was due to return a month later, but did not do so.

The mother applied for his return in the English courts, under international legal treaty the Hague Convention on the Civil Aspects of International Child Abduction. However, a Family Court judge declined to order E’s immediate return to Spain on the grounds that the boy objected to being returned.

Article 13 of the Convention states clearly that:

“The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”

E’s mother appealed.

When this reached court, Lady Justice Black noted that she had recently presided over the similar case of Re M, in which the three children of an Irish father objected to the prospect of being sent back to Ireland after being brought to the UK by their mother.

The father insisted that E’s objections to being returned to Spain were genuine and valid under Article 13 of the Convention. The mother, meanwhile, argued that his objections did not constitute a valid defence and that, even if they did, the Judge should have used his discretion to order his return anyway.

Lady Justice Black cited the earlier judge’s careful assessment of the various factors in the case. The boy’s objections were based on real experiences and he did not appear to have been overly influenced by his the father or by anything the latter may have told E about the reasons the couple had initially separated. E still expressed affection for his mother. He had told a Cafcass officer that he wanted to visit his mother in the future and sometimes missed her, but he was worried that his feelings of frustration and resentment would interfere with their relationship if he was forced to return.

Lady Justice Black noted:

“These references do not sit easily with the idea of a child who has been manipulated by the other parent into voicing objections.”

The Judge had been entitled to reach the conclusions he had done, Her Ladyship continued.

He had given proper consideration to all the relevant factors, including the potential impact on E’s relationship with his mother. While she believed their relationship would deteriorate if he was not sent back, the boy believed the opposite.

Lady Justice Black concluded:

“This court is always reluctant to interfere with the exercise of discretion by a judge and I see no cause to do so here.”

The judgement is here.

Photo by Erica Feliciano via Flickr

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Luke says:

    With small children I’d be completely against this – but he’s 14 !
    I hope the mother is charged with all costs in the case for wasting everybody’s time.

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