Father wins appeal against return of children to Australia

Children|October 15th 2015

A father of five has won his appeal against an order that he return the four oldest to their mother in Australia.

In F (Child’s Objections), the children in question are now aged between 13 and nine. Two of the four are twins. Last Christmas, they travelled to visit their father in Britain for Christmas and New Year but did not return to their mother at the scheduled end of their trip.

Despite the multinational nature of the dispute, the children’s parents are both British and both formerly lived in the UK. In a Court of Appeal judgement, Lady Justice Black noted:

“There is a considerable amount of debate between the parties over the facts”.

The family emigrated to Australia in 2007 but the parents separated shortly after their arrival. The mother remained in the family’s new home, while the father elected to return to England, where he set up home with his new partner. They now have a child together, the father’s fifth.

However, he returned to Australia to see the four older children several times a year, explained the Judge.

“There is no doubt that, nevertheless, the children missed him.”

In January last year, the children visited their father in England for the first time and subsequently began to express a wish to remain. The mother insisted however that they would not be returning.

The parents agreed to let the children spent the whole of Christmas and New Year in England so they could enjoy more time with their father. They were booked to return on 23 January.

But this did not happen. The father reported that as their scheduled return date approached, the children became increasingly insistent that they did not want to go back. He described them as “absolutely insistent” and “adamant”.

The parents’ accounts of the subsequent events differed. The father said the children told the mother that they did not wish to return and when she realised that they were serious, she announced that she would pack up her house and come back to the UK, “telling them that wherever they were, she would wish to be.” The mother, by contrast, insisted that she not accepted the father’s announcement that the children would remain with him, and that this had never changed.

She launched proceedings for the return of the children under the Hague Convention the Civil Aspects of International Child Abduction. Judge Bellamy granted an order for their return in July and the father subsequently appealed.

His counsel argued that the Judge had not given sufficient weight to the children’s views. These should have been classed as valid objections under Article 13 of the Convention, they declared.

Article 13 states 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.”

In a carefully reasoned judgement, Lady Justice Black concluded that it was best for the children to remain with their father.

“Weighing up all the circumstances, including in my consideration the very important matter of the policy of the Hague Convention…I have concluded that the correct exercise of [judicial] discretion in this case would be not to order the return of the children to Australia …. I would therefore allow the appeal, substituting a finding that the children objected to returning to Australia and, in the exercise of the resulting discretion, I would dismiss the mother’s application for their summary [immediate] return.”

She noted, however, that:

“It is clear that the children love their mother and want to see her and it is to be hoped that once the present round of litigation is over, they can resume normal contact with her.”

Read the ruling here.

Author: Stowe Family Law

Comments(4)

  1. Foort Tayler says:

    It was very disappointing and frustrating that the Judge in the first instance failed to acknowledge the children’s strong objections to a return to Australia despite hearing from the children directly. There was a great deal of legal argument about the interpretation of the word “objection” in international cases such as this one and we are really pleased that the Court of Appeal reinforced the importance of sticking to the ordinary meaning of the word “object”. They confirmed that there is not special nuance to the meaning of this word and to express an objection is to object. Having confirmed that, they went on to say that the totality of the evidence in this case “clearly established that the children did object to returning to Australia” and it was that clarification that was needed to ensure that these children got to remain in the UK with their father in compliance with their wishes.

  2. Luke says:

    I am often critical of a judicial system that seems to spend forever (and lots of litigants’ money) making a decision on cases that are absolute no-brainers and should have taken five minutes to decide – this case isn’t one of them…
    .
    I think the default position is that the children would normally go back to Australia with their mother – but these children are not small (13, 10, 10, 9) and having read the case they have very decided views on staying in England.
    It has been established I think beyond reasonable doubt that these ARE their legitimately held views – what would one do if they subsequently simply physically refuse to cooperate – put them in a cage and take them back ???
    .
    It’s difficult and I can understand the mother’s distress but there seems to be no other reasonable option but to let them stay with their father. I think the mother should get extremely generous contact rights.
    .

  3. Andrew says:

    Generous contact rights? Yes, provided contact is here, the father retains their passports, and she pays the fares.

    • Luke says:

      She couldn’t afford to stay in Australia, she is in the UK, I don’t think that would be a problem – besides, as I said, you can’t MAKE children of that age all get on a plane if they don’t want to.

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