Hague case “a very real and humanly painful dilemma”

Family Law|April 4th 2017

I’ve written on many occasions about the difficult decisions faced by our family judges, on a daily basis. One of those difficult decisions occurs when the outcome of the case can put huge distances between the child and one of its parents, thereby making it extremely hard for that parent to retain a relationship with the child, and risking a total severance of the relationship. I’ve written about this here previously in the context of international child relocation, but it can also of course occur in child abduction cases, such as the recently-reported case T (A Child : Hague Convention proceedings).

The case concerned a child, ‘T’, who was born in El Salvador in 2010. His parents had married in 2006, but separated in 2011. T remained with his mother, but had ‘significant’ contact with his father. His parents were divorced in 2014 and both have since remarried. The mother’s new husband, a Spanish national, was working in London. In June 2016 the mother gave birth to a daughter, by her husband.

T was habitually resident in El Salvador until his mother unlawfully removed him to the UK without the father’s consent, in July 2015. In October 2016 T’s father commenced Hague Convention proceedings, seeking T’s summary return to El Salvador. This judgment, handed down by His Honour Judge Turner QC in the High Court last December, was the final hearing of that application.

The mother opposed the application, on two grounds:

  1. That, pursuant to Article 12 of the Convention, one year had elapsed from the date of the wrongful removal, and T was now settled in his new environment.
  2. That, pursuant to Article 13(b) of the Convention, there was a grave risk that T’s return would expose him to physical or psychological harm, or otherwise place him in an intolerable situation, due to the security situation in El Salvador. The mother had very good reasons to be concerned about security, having been the victim of an armed robbery at her home in San Salvador in August 2014, during which she was seriously assaulted. The mother believed that she may have been targeted because her cousin was a high ranking official in the army, and she subsequently sought protection, but she remained deeply worried about the continued security threat to her family.

The circumstances of the removal were, briefly, as follows. The mother had informed the father that she wanted to permanently remove T from El Salvador, but the father refused to agree to this. He did however agree to the mother taking T on a holiday to Disneyland in Miami, United States, from 24th July 2015 to 4th August 2015. Whilst the mother was in Miami her mother claimed to have been approached in El Salvador by two men who demanded the mother pay them extortion money, failing which there would be ‘direct consequences’ for T. The mother then bought plane tickets for London, and flew there with T on the 30th July 2015.

From then until the day of the hearing the father had no direct contact with T, although he did have contact via Skype. The father states that on the 1st October 2015 he submitted a request for T’s return to the Salvadorian Public Ministry, although he was unsure about T’s location. Because of this, and other reasons, the father’s Hague application was not made until October 2016.

In coming to his decision Judge Turner was highly critical of certain aspects of the mother’s conduct. In addition to the abduction itself, she had sought to cut off T from his father and his paternal family, and had at one point summarily stopped contact between T and his father. He said:

“I have, I confess, not found this altogether easy. I, frankly, deprecate the mother’s conduct. It is difficult to see what she can have been thinking of in the events of the move and its aftermath. It was certainly not the overall wellbeing of her son.”

Notwithstanding this, he found that T had now settled here. He was getting on well at school, had made new friends and was very attached to his half-sister. Judge Turner made this finding “with some real sadness for T’s father and not a little frustration at the past conduct of T’s mother”. In view of the finding, he was satisfied that he should exercise his discretion against ordering T’s immediate return.

As to the Article 13(b) defence, Judge Turner concluded on balance that it would not be right to require T to be returned to face further risks of the kind the mother had experienced. The risks, he said, may be relatively low, but they were in his judgment grave in the circumstances of emotional or psychological harm, if not of physical harm. He was not persuaded that State provided or other protective measures of a sufficient kind could realistically be put in place to ensure T would not be called on to face an intolerable situation were he to return to live with his mother in El Salvador. Accordingly, he found the defence made out on that ground. He concluded:

“It follows that, not without very real regret, I refuse the application by the father for summary return of T to El Salvador.”

The full report of the case can be found here.

Photo of San Salvador by José Alejandro Álvarez Ramírez via Wikipedia 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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