Relocation case demonstrates conflict between requirement to obey the court and the welfare of children

Family Law|October 11th 2016

I don’t normally comment upon an on-going case in which no final decision has been made. However, the facts in X, Y and Z (Children) (Retrospective Leave to Remove from the Jurisdiction), published last week, demonstrate an important and recurring issue in family law: the conflict that can arise between the requirement of the parties to proceedings to obey the orders of the court and the ‘paramount consideration’ of the welfare of the children involved in those proceedings.

As I indicated, no final decision has been made in the case, and I’m not going to discuss or speculate what that decision may be. Instead, I am going to concentrate upon the facts of the case and the difficult position that the court is put in by those facts.

The case concerns three children, aged ten, eight and six. Their parents married in 2006.  According to the mother, the father was violent towards her and the children during the marriage. Indeed, in 2011 the mother obtained an ex parte non-molestation order against the father, although she subsequently withdrew her application, and the parents were reconciled.

The reconciliation only lasted until March 2013, when the parents’ relationship finally ended. At that point the mother took the children to Spain, without the father’s knowledge or agreement. The children have remained in Spain ever since.

The father apparently suspected that the children had been taken, or were about to be taken, to the maternal grandparents’ property in Spain for the Easter holidays, as was usual, although he didn’t then know whether they had actually gone or that they had been retained there. On 10 May he obtained an ex parte prohibited steps order prohibiting the mother from removing the children from England and Wales. The mother was informed of this, and of the next hearing date, but she did not attend that hearing, or the next.

In September 2013 the father submitted an application to the International Child Abduction & Contact Unit, which forwarded the matter to the Central Authority in Spain. For some reason it was not until February 2014 that an application to the court in Spain made on behalf of the father under the Hague Convention was issued, seeking the return of the children to this country. The mother opposed the application, on the basis that there was a grave risk that their return would expose the children to physical or psychological harm, or otherwise place them in an intolerable situation. The Spanish court rejected this defence and on 25 April 2014 ordered the mother to return the children. The mother has not complied with that order.

The mother appealed against the order. Her appeal was not heard until March 2015, when it was dismissed, the appeal court finding that there was no evidence of risk of harm to the children.

Thereafter the Spanish authorities took various steps against the mother, including making a further order for her to return the children. The mother did not comply.

On 21 June 2016 the mother issued an application in the English court for retrospective leave to remove the children temporarily to Spain and also for permission to relocate the children permanently in Spain. The application went before His Honour Judge Meston QC, sitting as a Deputy Judge of the High Court. Judge Meston speculated that the application “was probably a reaction to the slowly increasing pressure from the Spanish authorities seeking to enforce the order which included the possibility of criminal sanctions.”

The mother did acknowledge that it was wrong to breach the Spanish order, but she said that she felt she had no choice, given the prolonged abuse that she claimed she and the children had suffered at the hands of the father. The father denied many of the allegations made against him, and made counter allegations. He argued that the English court should not entertain the mother’s application until she complied with the Spanish order.

So there we have it. The children have now been living in Spain for almost three and a half years, during which time they have not seen their father. As Judge Meston said, they are likely to be settled there, and it is quite possible that they been influenced towards a negative view of the father. The delays that have occurred are not, of course, the fault of the father, but rather, as Judge Meston also said, the result of delays in the process in Spain and of the mother’s success to date in avoiding enforcement of the order.

The court is left with a balancing exercise. On the one hand it has an obligation to uphold the principles of the Hague Convention (and also the general rule that a court will not hear a party who is in contempt of court until he or she has purged the contempt), and it will not want the mother to be seen to have benefitted from her failure to comply with court orders. On the other hand its paramount consideration must be the welfare of the children, which requires an investigation into their current circumstances and wishes that may, of course, indicate that their welfare will be best served if they were to remain in Spain.

As I have said, the proceedings are continuing. Judge Meston has given directions for the matter to be dealt with in this country, as swiftly as possible, including a direction that a guardian be appointed for the children, who should report upon their current circumstances and wishes.

The full report of the case can be found here.

Photo by David Spinks via Flickr under a Creative Commons licence.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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Comments(3)

  1. Donald Tenn says:

    I don’t find the resolve to this matter as difficult as the court finds for at least the following reasons:

    1.) The mother did willfully and deliberately with malice intent abduct the children from their home.
    2.) The mother has at least created psychological harm by keeping the children away from their father and it should not be considered a secret that she has also probably harmed them with false allegations about their father.
    3.) The mother has violated and is in contempt of several court orders by the courts in at least 2 countries Spain and England.
    4.) The mother has willfully and deliberately violated the principles of the Hague Convention put into affect specifically to avoid matters such as this.

    One may even assume, given the current state of affairs that the mum’s initial complaint of abuse was a falsehood which she obtained as an act of perjury.

    So here we are again, of course John believes there is no gender bias within the family courts but I of course disagree and believe that if the father had acted in such a manner this post would be about where this evil man should be incarcerated and for how long. That is of course if the authorities in Spain had not already taken this man’s life for these crimes. Yes, these actions taken by this mum are crimes and she should have been incarcerated and the children returned home to their father years ago at which point he should have been granted full custody until at least the mum was released from prison.

    Which way should the scales of justice tilt? Should we abide by the law? A law put into place to protect us all in what is supposed to be a civilized society? Or, should we even consider allowing the mother to continue on in her criminal actions, stating of course, ‘It is OK this time as it is in the best interest of the children’.

    It is of course my contention that we should adhere to the laws put into place to protect us all from such actions. The children should immediately be returned to their father and mum should have supervised parenting time with the children from prison. When mum is released from prison in at least 5 years after undergoing psychological evaluations, if she is found to be competent, she should be allowed to continue supervised parenting time with said children.

    Serious consideration should also be given to the co-conspirators of this International crime those being the grandparents who did also willfully and deliberately aid and abet the mum in her criminal actions. There are several reasons why laws have been created in our society and probably the most important reason is to keep innocent persons from being harmed. In this case at least 3 minor children have been harmed, the father of these children has been harmed and his entire family have been harmed. It is time to end this harm and institute the law which was put into place to protect us all.

  2. Anna says:

    I have to empathise with the father in this case.

    My husbands ex wife made a leave to remove request in 2012 to take his two children, then 9 & 12 to live in france for 3 years. She made numerous allegations against him, which were completely made up, including getting the children to say they were sometimes scared of him in order to influence CAFCASS and the judge. These allegations were completely untrue. The children aways clung to him like little limpets when they were with us, his ability as a father was one of the things that made me fall for him. I got to see first hand how biased the system is against men.

    We fought the case for a year, and despite us having CAFCASS support throughout, they changed allegiance on the day of the final hearing- suggesting that as long as the mother brought the children back on a fortnightly basis for weekends and half of their school holidays it would have no impact on their relationship with my husband.

    Unfortunately as soon as she took them to france they never came back. She knew that nothing could make her bring them back, even the courts in france. Very quickly the children stopped talking to my husband altogether, they blamed him for the stress the case put them and their mother through. We only got to see them when we turned up unannounced in France. Unfortunately the case cost us £40k, so we did not have the money to do this regularly. The mother was due to fund all the children travel costs. We would tend to only hear from the children just before christmas and birthdays as they wanted more gifts and presents.

    When the 3 year order was up she brought the children back; but the damage to their relationship is irreversible. It has completely broken my husband. He is depressed all the time and can’t understand how as a loving father who saw his children every week, went to their school plays, stayed with them when they were hurt etc could be subject to something so unthinkable as this. The mother continues to poison the children, whether she thinks she is or not. We are at the point now where the youngest even wants to change her name, with her mums support, because we wont pay for her to have a horse! My husband has never once missed a maintenance payment, or not been there when he is asked to be. Yet he is treated like an abusive ex husband all because an ex wife wanted something different to him.

    the law cannot punish one parent by withholding access because the other parent has restricted the relationship and poisoned the childs memory.

  3. Donald Tenn says:

    I just wanted to ad… The title of this article also shows a gender bias towards mums. This was NOT A RELOCATION, this was a “PARENTAL ABDUCTION”.

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