I’ve read quite a few international child abduction cases over the years. Sometimes the abduction is opportunistic, in that the abducting parent only chooses not to return the child(ren) when they are already in the foreign country. Sometimes the abduction is almost accidental, the result of unintended events. And sometimes the abduction is blatant. The abduction in the recent case H v K (Return Order) falls into that category, and is one of the most blatant I have come across, involving premeditation, alienation of the children against the other parent, and an elaborate course of action designed to hide the whereabouts of the children from the other parent.
H v K concerned an application by a father for the summary return of two children aged 10 and 9 to the USA, specifically Hawaii. The application was heard by Mr Justice MacDonald in the High Court. The relevant facts were that the parents married in 2006 and the family latterly lived in Hawaii. The marriage broke down and the mother filed for divorce in October 2014. In October 2015 the court in Hawaii ordered that the parents have joint legal and physical custody of the children, with physical custody alternating on a weekly basis with arrangements made for contact. A mutual non-removal order was made, prohibiting the removal of the children from the county of Hawaii without the consent of the other parent or the permission of the court.
In April 2016 the court in Hawaii granted the mother permission to take the children to London to attend a memorial service for their maternal grandmother. The order clearly prescribed the period to which this permission applied, namely from 5 July 2016 to 18 July 2016. The mother duly flew with the children to London on 5 July. However, she did not return them on 18 July, as required by the order. Mr Justice MacDonald takes up the story:
“Indeed, it is now apparent that the mother took the children first to France, then to the Spanish mainland and then to Tenerife, where she remained until 26 November 2016 when she returned with the children to the jurisdiction of England and Wales. I agree with the view of the Children’s Guardian that it is likely that the mother took these steps to avoid detection and to keep the children from their father.”
He went on:
“Indeed, with the benefit of evidence gathered during the course of these proceedings, it is clear that the mother’s wrongful retention of the children outside the jurisdiction of the United States was plainly pre-meditated. Witness depositions from the proceedings in the United States indicate that the mother had contemplated leaving the jurisdiction with the children for a long time and had the assistance of others in doing so and when seeking to cover her tracks. In her sworn statement before this court the mother states in terms that: “I admit that prior to my departure to Europe, it had been my intention not to return for the physical safety and emotional wellbeing of my children.” ”
The father took the matter back to the court in Hawaii, which made an order on 8 August 2016, following a contested hearing, for the mother to return the children and for the father to have full custody of them. The mother failed to comply with the order.
Attempts were then made to locate the children, and the father was advised to make an application for their summary return in this jurisdiction under the Hague Convention, which he did, on 8 December. On that date the English court made a location order, and the children were located at the home of a maternal aunt on 22 December.
The mother accepted that her retention of the children was wrongful, but raised two defences to the application: that the summary return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation, and that the children object to their return and have each attained an age and degree of maturity at which it is appropriate for the court to take account of their views.
MacDonald J did not accept either defence. Before I come to that I should mention what he had to say regarding the issue of wrongful retention of the children:
“I am satisfied that in July 2016 the mother instigated an entirely premeditated and flagrant abduction of the children from the jurisdiction of the United States. The mother’s conduct was blatant, taking place as it did in the context of ongoing proceedings in Hawaii and in the face of a court order, applied for by the mother, that stipulated precisely the period of time the mother was permitted to retain the children outside the jurisdiction of their habitual residence. Having regard to the evidence that the mother had planned for some time to remove the children, it is difficult to avoid the conclusion that the mother applied to the court in Hawaii for permission to remove the children temporarily to England as part of her plan to abduct the children, thereby using the court to further her unlawful conduct.”
As to the ‘harm’ defence he said that he had ‘significant doubts’ regarding the credibility of allegations the mother had made against the father regarding his conduct towards the children. However, he said, even if the mother’s case did establish a grave risk of physical or psychological harm or of otherwise placing the children in an intolerable situation, he was entirely satisfied that the protective measures offered by the father (including not to use or threaten violence against the mother and not to separate the children from their mother when they returned to the US) were sufficient to protect the children.
As to the children’s objections, he said that there was evidence that their expressed wishes to remain in this country had been influenced by their mother. This reduced the weight he attached to their views. In any event, he had a discretion to order their return even if their views were clear. Here, he found that their objections were heavily outweighed by the “manifest welfare advantages to the children’s welfare being determined in the jurisdiction of their habitual residence”. Further, he was satisfied that only by returning the children could the court ensure the continuation of their relationship with their father.
Accordingly, he ordered that the children be returned forthwith. He concluded his main judgment with a warning for the mother:
“Finally, I would say this. Whilst it is not for this court to make a final determination on the issue, for the reasons I have given I am satisfied that there is cogent evidence before the court that the mother has sought to influence each of the children against their father. As I observed during the hearing, the mother should know that any parent who seeks to influence their child against the other parent almost always finds that, eventually, there is a debt to be paid. This court has the benefit of seeing cases at many different stages of a child’s life. Children with separated parents grow up and, ultimately, come to render their own judgments about the character and conduct of each of their parents. It is my experience that a parent who has sought to undermine their child’s relationship with the other parent does not fare well in that reckoning. Such parents often find that in their attempt to manufacture estrangement between their child and the other parent it is they who, ultimately, become estranged. Beyond this, a parent who seeks to undermine their child’s relationship with the other parent risks causing grave damage to their child’s emotional wellbeing and, ultimately, their child’s mental health. The mother would do well to reflect very carefully on these matters.”
A warning that any parent contemplating influencing their child against the other parent would do well to read.
The full report of the case can be found here.