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Father loses appeal against loss of son

The father of a three year-old boy has lost an appeal against an order that he be returned to his mother.

In S (A Child) , the parents began living together in May 2011. ‘S’ was born the following year and the year after that, the couple finally married. But by then the relationship was already in trouble and they separated just months later, in November.

Sitting in the Court of Appeal, Mr Justice Keehan noted:

“What then occurred is a matter of dispute between the parties. The father contends the mother abducted the child to Malta in November 2013. The mother contends there was an agreed plan for the family to relocate to Malta which was ultimately frustrated by the father losing his job before the mother, S and her 14 year old son from a previous relationship, T, had travelled to Malta.”

The father applied for the return of his son under the Hague Convention on the Civil Aspects of International Child Abduction. The Maltese courts ruled in his favour, saying the mother had indeed abducted S. She initially resisted an order for his return, but in October S was finally went to live with his father back in the UK.

Later the same month she applied for the legal right to take the boy back to Malta permanently, but later dropped this. Instead she applied for the right to see S under a child arrangements order.  It was granted in January last year, but the father dragged his feet and did not cooperate with arrangements for contact, because, he said, the mother had set up home with another man in the UK.

As a result, the mother applied for the English courts to enforce the arrangements order. Meanwhile, in November 2015, Her Honour Judge Hindley QC made a fresh child arrangements order stating that the boy should be returned to his mother. The father launched an appeal.

The mother’s application to enforce the arrangements order was heard but adjourned pending the results of the father’s appeal.

At the Court of Appeal, the father’s legal team argued that, in making the child arrangements order, the judge had not given due consideration to the possibility of the mother taking S abroad again, or the risk allegedly posed to him by the mother’s new boyfriend. Amongst other issues, the father also expressed concerns about the supposed absence of adequate safeguarding checks or assessments in respect of the mother”, and not properly considered the fact that S had by that point lived with his father for more than a year.

In his ruling, Mr Justice Keehan insisted that Judge Hindley had addressed the possible risk of abduction, noting the mother’s stated desire to remain in the UK and saying she had shown greater insight into her son’s emotional needs than the father.

Judge Hindley had also addressed the issues presented by the mother’s new boyfriend “robustly”. No evidence had been found that he was living with the mother but she had acknowledged that he posed a potential risk to S’s welfare and prohibited contact with the boy.

Cafcass had carried out an assessment of the mother’s parenting abilities and this was cited in the ruling. Mr Justice Keehan also insisted that Her Honour Judge Hindley had properly addressed the issue of S having lived with his father for a year, saying:

“I am satisfied that S was upset at the very sudden separation from the Mother for which he had not prepared. The father tried to play this separation down in his oral evidence.

How would a further change by a return to Mother’s care affect S? He enjoys his weekend staying contact with her; he has also stayed for a week’s holiday without [any] problems at all. [A Cafcass officer] said that, ‘Given that A has lived with Mother and that there is an established relationship between them and there is no doubt about her ability to manage him, a change (ie back to mother’s care) can be managed’.”

Consequently, said Mr Justice Keehan:

“…I am not satisfied that the father has established that the judge was wrong in making the order in December 2015 nor that her decision was unjust because of a serious procedural error or other irregularity. Accordingly I would dismiss this appeal.”

But the case was “contentious”, the Judge acknowledged, and he invited the parties to make further court applications.

Read the ruling here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Andy says:

    YET again courts favour the mother what ever she has done..typical small minded attitude of current court law…
    Let a say Mother had been a drug user ,alcoholic and depressed etc..the courteous support her all the way to recovery…In the Fathers case if he had the same issues as stated he would get nothing and Putin prison..So the moral of the story is..mother gets everthing and father nothing.

    When will this screwed British law ever be challenged to fight injustices these out forecourt dish out to fathers that have done no wrong but to see children.
    Useless courts and lying CAFCAS reports.

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