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.