Mother wins right to see child in Florida

Family Law|December 18th 2015

The mother of a ten year old girl has won the right to see her in Florida.

Re C-W (A Child) concerned a British father and Caribbean mother. Their daughter was born in the United States in 2005 and their relationship broke down five years later. The father moved back to Britain with their daughter and the mother responded by launching an application for her return under the Hague Convention on the Civil Aspects of International Child Abduction.

This was unsuccessful, partly because the mother had no settled immigration status at the time and the father feared she could disappear with their daughter. He was granted a residence order, with the mother continuing to visit her in the UK and talks to her daughter regularly on Skype. She has since remarried and lives in Florida.

Earlier this year the mother made a new application, seeking permission to have her daughter visit her in Florida instead of the mother having to travel to the UK. To address concerns that she might not return the girl to her father, the mother offered a number of reassurances. These included storing the girl’s passport with an independent agent during her stay in Florida. The agent would be instructed by both parents but paid by the mother alone.

Her application was dismissed. Sitting in the Court of Appeal, Sir James Munby noted that the earlier judge had said she was “not being entirely satisfied with the mother’s evidence on the details, preferring the evidence of the father, who she found to be, on the whole, a credible witness.”

The mother successfully appealed. The original judge had given undue weight to the father’s concerns about the mother not returning, concluded Sir James. He quoted Lady Justice Macur, who, when granting the mother permission to appeal, stated:

“The judge’s assessment of the low risk of non return from USA renders father’s fear unfounded. The judge has weighted the father’s fear above other welfare considerations and has failed to consider the adequacy of [the] safeguards objectively.”

Opposing the application, the father had said he was worried that the mother might take their daughter out of the US to a country which had not signed the Hague Convention on child abduction. To address this concern, the mother’s counsel proposed that the father obtain a ‘mirror order’ in the Florida courts. As the name suggests, such orders exactly reflect or mirror the contents of an English order.

Sir James concluded:

“In my judgment, the short answer to the father’s concerns is that, if a ‘mirror’ order of the kind Mr Bennett proposed is obtained from the Florida court before [his daughter] goes to America, the father will not be dependent upon his remedy under the Hague Convention [if the mother absconds]. He will have available to him a remedy – namely the enforcement by the Florida court of its own order – which ought, in principle, to be cheap and straight-forward.”

Read the ruling here.

Author: Stowe Family Law

Comment(1)

  1. Luke says:

    It seems to me that unless the father has real evidence to show the mother might abscond with the child the mother has fulfilled all reasonable criteria and the mother should not be denied the visits that she has requested.

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