The phrase ‘child abduction’ conjures up some perturbing thoughts. Most parents could not contemplate their children being abducted, even by the other parent. However in the international environment we now live in, these types of cases are becoming more and more common. Of course, at first glance you might wonder how any parent could decide to leave the country in which they had raised their children to move away to another country. But in many cases a complicated history lies behind the decision to do so. The recent case of W (Children) is one such instance where you may have some sympathy with the so-called ‘abductor’.
In this jurisdiction, the law governing these cases is contained within the Child Abduction and Custody Act 1985, as well as the Hague Convention on the Civil Aspects of International Child Abduction 1980. The Hague Convention is rigorously applied in England and Wales. If an application for a return order is made within 12 months of the children leaving their home country, the English courts have limited discretion and hildren are routinely returned, with little consideration of the wider issues which may have prompted the abducting parent to take such action.
The situation is different when the children have been living in the new country over 12 months. At that stage, the court is permitted to consider the wider issues in the case and the abducting parent can raise defences to their actions. In W (Children), due to the significant delay in the father making his application, the mother was able to raise four defences, as follows:-
- That the children were settled in England;
- That the father acquiesced in the children’s removal to or retention in this country;
- That the children objected to being returned to Spain;
- That an order for return would expose the children to grave risk of harm or an intolerable situation.
The case of W (Children) involved some unusual circumstances. The main of which being that the children had been living in England for approaching two and a half years at the time of the father’s application for their return. The specific circumstances of this case prompted a very rare application in Hague Convention cases; the mother applied to ‘strike out’ the father’s application for the children to be returned to Spain.
An application for ‘strike out’ involves asking the Court, on the basis of the information before it, to summarily dismiss the other party’s application, usually because the application does not have merit or amounts to an abuse of process. These types of applications are extremely rare in Hague Convention cases and indeed the last time such an application was before the Court was in 1995, some 20 years ago. In his judgment in W (Children), Mr Justice Baker gives his views on strike out applications in Hague Convention cases. In summary, Mr Justice Baker found that the mother’s reasons for seeking a strike out would form part of her defence which would be fully considered at the final hearing. On that basis Mr Justice Bake refused the mother’s application for strike out.
The reasons behind the mother’s bold and unusual application cannot be considered in isolation without considering the facts of the case. The parties married in 2009 and they had two children together, a daughter aged eight at the time of these proceedings and a son aged six. The parties had a turbulent relationship which the mother asserted was witnessed by the children. The parties separated in August 2011. Shortly after, the father was convicted in Spain of an offence of “ill treatment in the family sphere” and was sentenced to a six month suspended sentence.
In late June 2013 the mother wrote to the father informing him that she was relocating to England with the children, which she duly did on 6 July 2013. On 24 July 2013 the father made an application in the Spanish Court asserting that the mother had left Spain with the children without his consent. The father asserted that the Spanish court told him that no steps could be taken to assist him without the mother’s address. In June 2014 the father was notified of the mother’s address by a private investigator, and in November 2014 the father was in email contact with the children’s school, from which he obtained copies of their school reports. However, the father’s application for the return of the children to Spain was not made until late September 2015; almost two and a half years after the children had left the country.
The mother’s application to strike out the father’s application was a bold attempt to curtail the proceedings. Whilst this application was unsuccessful, Mr Justice Baker pointed out that the mother’s main arguments which motivated the strike out application would form part of her defence at trial. He also indicated that the mother had some “strong points” and “cogent arguments” which would no doubt be deployed at trial.
Following the pre-trial review hearing in which the mother’s application was made, the father sought permission from the court to withdraw his application. This was granted and the father’s application for the return of the children to Spain was dismissed.
I represented the mother together with Counsel, Victoria Miller of Fourteen Chambers, 14 Gray’s Inn Square, London. The mother was delighted with the outcome.
Jennifer is a solicitor in Stowe Family Law’s Hale office.
She completed the Legal Practice Course at The College of Law, York achieving a Distinction after graduating from Sheffield Hallam University with a 2:1 LLB (Hons).
Since qualification in 2012, Jennifer has specialised exclusively in family law cases and has experience in relationship planning and separation advice, such as nuptial agreements and providing advice in relation to entering into a cohabiting relationship.
She has also advised clients at the end of a cohabitating relationship and has advised in relation to ownership disputes including applications under the Trusts of Land and Appointment of Trustees Act.