When a child is a fugitive from justice

Family Law|October 27th 2015

What does a court do when, in private law children proceedings, one of the parties takes the child out of the country to escape the jurisdiction of the court? Sadly, this is something that does happen from time to time, particularly when that party perceives that the proceedings are going against them.

That, it seems, was the situation faced by the court in Re G (A Child).

The case had been similar to so many others before it. A long-running dispute over a father’s contact with his daughter, G, who is now ten years old. The mother alleged that the father was a risk to G because he was violent. The father denied the allegation and asserted that G’s mind had been poisoned against him by the mother. Despite the fact that the proceedings had been going on for virtually all of G’s life, these allegations had never been fully investigated by the court.

The judge dealing with the case had, however, formed the view that the mother was substantially to blame for wrongly impeding contact between G and her father. Accordingly, he made a series of orders designed to lead the mother into making G available for contact. In particular, on the 6th of September 2013 he made a residence order in favour of the father, suspended on condition that the mother make G available for interview by the children’s guardian and two periods of contact to be observed by him. That order was complied with and the guardian reported that the contact had passed off uneventfully and was demonstrably enjoyed by G.

It was at this point that the mother appeared to decide to take matters into her own hands. She failed to attend the next hearing on the 28th of October 2013. Her fiancé told the court that she was ill, but in fact she had left the country, taking G with her, flying initially to Dubai. The judge then ordered that the suspended residence order in favour of the father should come into effect, and thereafter the court made various attempts to locate the mother and G and bring the child back to this jurisdiction. In particular, the court made orders against the maternal grandmother, the mother’s stepfather and her fiancé, prohibiting them from providing the mother with financial assistance and requiring them to provide the court with details of the mother’s whereabouts and her communication details as soon as they became aware of them, and to lodge their passports with the court. G was also made a ward of court. A Judge declared her removal from the jurisdiction unlawful and ordered the mother to return her to this country forthwith.

None of these efforts resulted in either locating the mother and G, or bringing G back to this jurisdiction. Most of the orders that the court had made against the maternal grandmother, the mother’s stepfather and her fiancé were cancelled.

In August 2014 the case was transferred to Mr Justice Baker, in the High Court. By that stage, further information had revealed that the mother had left Dubai and travelled to Vietnam. Efforts to obtain her extradition were made by the police, but they were unsuccessful and the mother and G subsequently left that country, moving, it is believed, to Cambodia. Meanwhile, the mother occasionally communicated with the court and eventually a telephone hearing was arranged, in which the mother took part from an unknown location believed to be somewhere overseas.

At that hearing Mr Justice Baker indicated that, if the mother returned, he would be minded to impose a six-month pause in any further litigation in the proceedings, allowing G to settle back in this country with the mother before the court reconsidered the question of G’s contact with her father. The mother indicated that she would think about this proposal. However, a few days later she emailed the court, stating that she and G would not be returning to this country.

At this point, the father announced that he had grounds for believing that the maternal grandmother, the mother’s stepfather, her older son and her (now former) fiancé knew where the mother and G were. Furthermore, in the case of the fiancé, information from the police indicated that he had travelled to Vietnam and/or Cambodia on three occasions in the previous year or so, namely for one month between May and June 2014, for ten weeks between November 2014 and February 2015 and for eight weeks from 8th April 2015 to 5th June 2015. The father suggested that these trips suggested that the fiancé not only knew of the mother and G’s whereabouts, but was actively involved in helping the mother to keep G abroad.

Another hearing was fixed and Mr Justice Baker made a further ‘passport order’ against the fiancé, to ensure he did not flee the jurisdiction before the hearing. When the tipstaff’s representative served the passport order on the fiancé, the fiancé informed him, untruthfully, that the passport was still held by the court. The fiancé did subsequently hand over the passport, admitting that he had been in breach of the order.

So to this judgment, which concerned the subsequent hearing on the 21st of July this year. Mr Justice Baker was faced with three matters. Firstly, the father’s application to commit the fiancé for breach of earlier orders. This application had a number of technical flaws, and was withdrawn. The second matter was the fiancé’s breach of the passport order, for which Mr Justice Baker imposed a sentence of two months’ imprisonment, suspended for a period of 12 months. The third matter was the presentation of further evidence from the fiancé and other individuals regarding the whereabouts of the mother. That evidence is not included in the judgment, but it is clear that the court is no closer to bringing about G’s return to this jurisdiction.

All of which is, of course, completely unsatisfactory, not just from the point of view of the mother defying the will of the court but more importantly regarding the effect of the mother’s actions upon the welfare of the child. Mr Justice Baker had this to say at the end of his judgment:

“I conclude by reiterating what I said to the mother in the telephone hearing a few weeks ago: this court remains extremely anxious as to the welfare of G, who has been away from this country, her family and friends for 21 months. Those who have seen her say that she appears well and I have no reason to doubt that the mother is caring for her properly, but it cannot be in her interests to be out of this country, away from family, friends and school, living the life of a fugitive.”

Let us hope that the mother sees the wisdom of these words.

The full report of Re G can be read here.

Author: Stowe Family Law

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