Court refuses return of child to mother despite blatant abduction

Family Law|September 7th 2015

I think that one of the reasons that family law can seem somewhat mystifying to non-family lawyers is that, unlike in other areas of law, it can seem that rules can be broken. Whereas, for example, a rule in employment law that employees mustn’t be unfairly dismissed is absolute (if there has been an unfair dismissal, the employee has a remedy, e.g. reinstatement and/or compensation), in family law things aren’t always so clear.

Take, for example, the ‘rule’ that a parent cannot abduct a child from one country to another. One would think that, once an abduction has been proved (i.e. removing the child from its home country in contravention of a court order or without the consent of the other parent), then the court will automatically order the abducting parent to return the child to its home country. However, that is not necessarily what will happen.

So it was in the case Re TP (A Child), which was reported last week. Here, the father had clearly abducted the child from France, and yet the English court refused the mother’s application for him to be returned.

The circumstances of the abduction were, briefly, as follows. The parties were married in England in 1998, but moved to France in 2001. They had three children, now aged 16, 15 and 11. The marriage broke down and the father returned to England in 2009. In the summer of 2014, the youngest child, ‘T’, told his mother that he would not be returning to school in France for the following September. As a result, the mother refused to allow T to go to England for contact with his father that summer, fearing that he would not be returned.

In October 2014 the father went to France to have contact with the children. The mother permitted contact to take place but retained T’s passport. However, the father had apparently acquired a replacement passport for T, and on 22 October the father and T travelled back to England. The mother then issued proceedings under the Hague Convention for the summary return of T to France.

The father raised the ‘usual’ defences to the mother’s application, i.e. that there was a grave risk that T would suffer harm if he were to be returned, and that T objected to the return. Without going into detail, the alleged risk to T was essentially that the mother had a drink problem, which impacted upon her ability to look after the children – a matter that was being investigated by the authorities in France.

Hearing the case Mr Justice Baker found both of the father’s defences to be proved. As to T’s objections, he said:

“I give serious weight to the policy underpinning the Convention [i.e. to secure the swift return of children wrongfully removed from their home country], and I acknowledge that this was indeed … a blatant abduction, and that the father removed T from the life he has always known except for periods of staying contact. But, in my view, the strength of T’s objections, the fact that, as I find, they are authentically his own, and that they are rooted in his own experience are ultimately the decisive factors in the exercise of discretion. On balance, I therefore exercise my discretion, by refusing to return T to France on the grounds of his objections.”

Accordingly, the mother’s application for summary return was refused.

Thus it could be said that the father was rewarded for breaking the rule against abducting children, and I could certainly understand if a non-family lawyer took that view. However, of course, there is another rule that transcends the rule against abduction: the rule that the welfare of the child is paramount. In the end the court will base its decision upon what it considers to be in the best interests of the child, irrespective of the rights and wrongs of the actions of the parents.

The full judgment can be read here.

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. Andrew says:

    I notice that she was represented, probably legally aided, and he was in person. Article 6 anybody?

  2. Paul Apreda says:

    Ah John – I honestly believe you are a charming, renaissance man whose company over a small glass of port would be a delight. However your first sentence does have the ‘smack’ of being thoroughly patronising (though perhaps that’s just me 😉
    The more substantive point I believe you make is that non-lawyers just don’t understand how an Order / law can be clearly broken and yet there is no enforcement.Only 2.1% of applications for enforcement of Private law orders end with an Order for enforcement – a fact which perhaps should be printed on the C79 under the title ‘Caveat Emptor’.
    The heart of the issue however is the paramountcy principle. As this is infinitely flexible and subjective it is rather important that those ‘non-lawyers’ who pay their £215 for the privilege of accessing the Service provided by Her Majesty’s Courts & Tribunals have as much clarity and guidance about the guiding principles that the Court will apply in determining the ‘best interests of the child’. Interestingly I’ve recently become aware that social workers and family support staff anticipating the introduction of the new Social Services & Wellbeing (Wales) Act in April next year have persuaded Welsh Government to produce guidance about ‘best interests’. Surprisingly when I’ve asked for the ‘Holy Grail’ itself everyone looks a bit sheepish and walks off with their head down mumbling some obscenities. Hey-ho 🙂

  3. MH says:

    My niece fled back to the UK after she and her children suffered abuse. The children were returned to Germany as it was argues that this must happen, they would only “not” be returned if it was a “War zone” my argument is that for these boys it was/is a war zone . The lies told by a psychopathic father were upheld by the UK & German court and the boys put into his custody. Access to their mother, who a top psychologist acknowledged she was the primary carer, is only every two weeks. The youngest self harms and his Mum gets the blame for this too!! Where was the care of the child in our family? and where is it now? If children are returned then the returning country has a responsibility to have an “overseer” to ensure the safety of these children and that the abuser is exposed.

  4. Peter Tromp says:

    The final sentence in your article (i.e. “However, of course, there is another rule that transcends the rule against abduction: the rule that the welfare of the child is paramount. In the end the court will base its decision upon what it considers to be in the best interests of the child, irrespective of the rights and wrongs of the actions of the parents.”) is a legal misrepresentation on your side Marilyn.

    The main issue here is the rule that under the Hague Convention only the court in the “country of the habitual residence” of a child (i.e. the country where the child has lived the previous year) has jurisdiction and discretion over the matter, including the answer to the question what is in the best interest of a child. So the court in the country where the child was abducted to SIMPLY HAS NO jurisdiction or discretion in passing orders based on the best interest of the child. This court has only one option: Bring the child beck to the country of habitual residence, where the courts do have jurisdiction and discretion.

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