The Court of Appeal has rejected a Spanish father’s bid to jail his ex-wife for failing to return their children.
The failed appeal was the latest stage in “long standing litigation” between the father and mother. The couple were married for 13 years and had five children. The mother is from Wales and when the relationship broke down, she returned to the country and kept the children there with her. The father then launched proceedings for their return under the Hague Convention on the Civil Aspects of International Child Abduction, and they were duly sent back.
However, when the children later travelled over to visit their mother for a holiday, they again stayed on in Wales and refused to return, so their Spanish husband launched a second set of Hague Convention proceedings. The former couple’s oldest daughter returned to Spain voluntarily but the mother absconded with the four youngest rather than surrender them. She was eventually located by the police.
A complex series of court hearings followed. The two youngest children eventually also returned to Spain, joining their older sister, but ‘J’, aged 17, and ‘T’, aged 15, both continued to refuse.
They were both placed in foster care where social workers attempted to encourage them to return but they would not change their minds and they were eventually returned to their mother. At the Court of Appeal, Lady Justice Black noted:
“Contact between the children and the father in this country did not change things either.”
The children “remained steadfast” and they and their mother continued to resist the outstanding order that they return to Spain.
In a Court of Appeal judgement, Lady Justice Black explained:
“The matter came before [Mrs Justice Theis] in January 2013. In the judgment that she gave at the conclusion of that hearing, she condemned the mother for her refusal to comply with the return order and for putting the children in an impossible situation where their relationships with their siblings were fractured, to their long term detriment.”
The Judge left the return order in place but delayed enforcement by committal to prison in the hope that the family might be able to resolve the situation amicably.
The father applied for enforcement of the return order on a number of occasions. The President of the Family Division said there was a real risk that a fresh return order “would be frustrated by the obduracy of the children”.
The father objected that any such obduracy had been encouraged by the mother’s continuing “campaign to frustrate the orders of the court”, and the President agreed, again ordering the mother to return J and T to Spain.
She did not do so. But when the father then sought to have the mother sent to jail, the President declined to order this. He blamed the mother for the family’s situation but also concluded that the father had not demonstrated to a criminal standard that the mother could have made the children return.
The father appealed, arguing that the law should be changed to allow for enforcement when the action ordered by the family courts requires the cooperation of the child involved. Her Ladyship explained:
“His argument was that too often the parent fails to take any steps to persuade the child to co-operate (or even persuades the child not to do so) but the other parent’s committal application fails because he cannot prove that the order could have been complied with had the defaulting parent gone about it in the right way.”
But the Court of Appeal was unconvinced, saying that the President had made the original order in the full knowledge that the children might well refuse to cooperate. Consequently, said Lady Justice Black:
“It follows that, in making the order in the face of the risk that it would be impossible for the mother to fulfil it, he would have proceeded upon the basis that no finding of contempt could be made against her unless it was established to the criminal standard of proof that it was within her power to do what was required.”
Read J (Children) here.