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Mother who moved out with baby ‘cannot be made to return’

A mother who took her child from the south to the north of England cannot be forced to return, the Court of Appeal has ruled.

In R (A Child), at the beginning of this year the mother of ‘H’ suddenly left the father. They had been in a relationship since 2013. She moved from Kent, where the unmarried couple had lived, to the North East of England to stay with her family, taking the baby with her without telling the father of her plans. The mother later claimed the father had abused her.

When she refused to return, he responded with legal action, making an application that the mother be ordered to come back to Kent. This was dismissed on the grounds that a return would not be in the child’s best interests.

Meanwhile, the mother was granted a prohibited steps order, forbidding him from taking H away with him. He objected, saying he had never actually threatened to do so.

H’s father  unsuccessfully appealed the dismissal but he was given permission to appeal a second time. A legal guardian was appointed to represent the baby’s welfare as the case proceeded.

The father argued that the mother had abducted the baby. Central to his claims was the February case of Re C, which had concerned the rights of a mother to relocate to Ireland with her child. She was refused permission to do so. The father from Kent argued that his case should be treated on a similar basis and the courts should respond in the way they would to an international abduction.

Following a hearing, the father was told that ‘judgement would be reserved’ – i.e. a ruling would not be issued until later. Court of Appeal Judge Lady Justice Black has now dismissed his appeal for the second time.

Re C had not represented a significant, precedent-setting shift in the law, explained Her Ladyship.

“I do not accept the starting premise of the father’s case, that is that Re C represents a sea change in the law which in some way dictates a new approach to cases where one parent unilaterally moves a child from their home to another place in England and Wales. Furthermore, I am equally unable to accept the argument built upon it, namely that there is or should be a general principle that summary return to the place where the child was formerly resident should follow upon such a move unless there are good welfare reasons why that should not happen.”

The earlier judge had been entitled to reach the decision he had, she continued.

“The district judge had a delicate decision to make. It has not been established that he erred in his consideration of the factors that were relevant to it. He was entitled to take into account the mother’s allegations [of domestic violence], even though they were disputed by the father …He was entitled to conclude that moving back to Kent may have an adverse impact on the mother, and therefore on H.”

Read the judgement 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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