Court of Appeal dismisses father’s bid for return of his children

Family|December 16th 2016

A lengthy dispute regarding three young children has concluded with the dismissal of the father’s appeal against a ruling they should be allowed to stay in England.

Re F (Children)concerned two sisters, ‘L’ and ‘F’ aged 14 and seven respectively, and their little brother ‘G’, who is just four. Their parents are Hungarian and all three children were born in the central European country.

The parents divorced and their dispute reached the Hungarian family courts. Then last year, the mother decided to move to the UK with all three children, doing so without the father’s permission. Predictably therefore, he launched proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a multi-country treaty which provides a legal mechanism for the return of children taken abroad by a parent without permission

Both sisters said they did not wish to return, but a Judge ruled that they should return with their brother anyway. A deadline of 19 February was set – but then the mother was given permission to appeal, along with the 14 year-old in her own right. Nevertheless, President of the Family Division Sir James Munby again ruled that they should return to Hungary. A new deadline of 25 July was set.

The children refused to cooperate. L locked herself in a bathroom, later unsuccessfully applying to have the original return order set aside. Yet another deadline for the family’s return to Hungary was set for 25 August. L, seeming growing accustomed to the court process, applied for permission to appeal against this, but was again unsuccessful.

The new return date came and went, however, and the children remained in the UK. By now, concerns were growing about the older girl’s state of mind and she was admitted to hospital amidst threats of self-harm.

Matters came to a head in late August, when the mother and father made opposing applications: the mother trying to have the return order set aside once more and the father seeking to enforce it.

By this point the proceedings had acquired, to quote Lady Justice Black, “a regrettably long history”. In September Mr Jonathan Cohen QC, sitting as a High Court Judge, set aside the original return orders but naturally this too was appealed.

A key reason for the ruling had been L’s continuing refusal to leave England. The mother said she could not abandon her daughter if she would not return to Hungary and sending G back on his own would place him in an “intolerable position”.

In the Court of Appeal Lady Justice Black considered the points raised by the father’s legal team. They argued that the Judge had not given sufficient weight to the purpose of the Hague Convention or to the decisions made by Judges at earlier stages in the prolonged dispute. It was still possible the girls could be persuaded to return to Hungary they claimed.

Lady Justice Black explained:

“In this latter respect, he submitted in particular that the father’s view that he could get all the children to return voluntarily should have been tested out before setting aside the orders, especially as the father had been having good contact with the children during the proceedings.”

But she concluded:

“[The father’s] submissions did not persuade me that the judge’s application of the agreed law to the facts of this case was in any way flawed. It seems to me that the judge carried out a careful review of the relevant factors and that he was entitled to weigh them up as he did in making his decision.”

Consequently the father’s appeal was dismissed.

Lady Justice Black stressed the overriding importance of urgency in the resolution of such cases.

“The disruption caused by a wrongful removal and an imposed return to the country of habitual residence is minimised if the whole episode is concluded within a matter of weeks. If more time goes by, life in the new country may start to seem to the children like their established pattern of existence, battle lines may become firmly entrenched with the other parent, and the scope for damage is infinitely greater.”

Read the full ruling here.

Author: Stowe Family Law

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