Yesterday the Supreme Court handed down its decision in In the matter of J (a child). I have read the judgment, although I confess that I am not sure I entirely understand it. Perhaps that is because my eyes glaze over whenever a judge suggests that a ‘holistic approach’ to a situation is required. Whatever, it seems that the reference to “cases of urgency” in Article 11 of the 1996 Hague Convention includes child abduction cases where more than two years have elapsed since the alleged abduction took place.
But that is making light of a serious situation. What we have here is a father who has been denied face to face contact with his son since September 2013 and, more importantly, a child who may have suffered harm by being denied a proper relationship with his father for more than two years.
Obviously, in a child abduction case delay works in favour of the abducting parent. The longer the child remains in the new country, the more likely it is that the child will have established a new life there and the more difficult it will be for the other parent to show that it is best for the child to be returned. The abducting parent may therefore be tempted to take action to slow down or obstruct any legal process initiated by the other parent for the return of the child.
Now, in this particular case I don’t think there is any suggestion that the mother has purposely sought to delay the proceedings. Unfortunately, the father was unable to issue his application for the child’s return to Morocco until March 2014, due to a lack of money. Mr Justice Wood, who first heard the father’s application, commented that thereafter the case had since proceeded at “a somewhat laggardly pace”, partly because of funding problems on the mother’s part. Wood J handed down his decision (that the child be returned to Morocco) in October 2014 and the time since has been taken up with the mother’s appeal to the Court of Appeal (which gave its decision in April this year) and thereafter with the father’s appeal to the Supreme Court.
Whatever the reasons though, the fact remains that it is now 26 months since this child saw his father. That is not acceptable, even if the ‘abducting parent’ is not to blame.
Whilst such a delay is fortunately exceptional, unacceptable delays in child abduction cases are regularly reported. Yesterday another abduction case was reported, WA (A Child) (Abduction). In that case the abduction took place in February this year, but the father’s return application was not heard until November. Whilst I’m not sure that the mother was directly responsible for that delay, she did put forward in her ‘defence’ what Mrs Justice Pauffley described as “a series of futile attempts to avoid the consequences of her unlawful actions”. Obviously, if she had not done so and had accepted the true legal position then the child would surely have been returned long ago.
What is the answer in these abduction cases involving lengthy delay, especially where the abducting parent launches an appeal against a return order? Well, one answer was suggested in the penultimate paragraph of Lady Hale’s judgment in J (A Child):
“The International Centre for Family Law, Policy and Practice has helpfully pointed out that one option which does not appear to have been canvassed in the Court of Appeal, either by the parties or the court, was whether it was necessary to make an order for interim contact in any event. Research by Professor Marilyn Freeman for the Centre “has made it clear that contact with the left-behind parent is of crucial importance in preserving the relationship between the child and that parent, as well as in ending the abduction itself in some cases”. Black LJ herself acknowledged [in the Court of Appeal] the potential harm to [the child] in not keeping up his relationship with his father by direct contact. For the reasons given earlier, there may well be a need for such protection, protection which may have become more urgent the longer this case has gone on.”
Obviously, applying for an order for interim contact may not be a practical possibility in many child abduction cases. However, where it is it should clearly be an option for consideration by parents whose return applications are thwarted by delay, whatever the reason for that delay. As mentioned above, such contact may actually bring the abduction to an end. Even where it doesn’t, it may at least go some way to reducing the ill-effects of the abduction, particularly upon the child.