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.