Back in May, I wrote here about a troubling case in which two children had ended up living half a world away from their parents. The case has now come to a conclusion, at least in the courts of this country, and I thought I would provide an update.
The ‘concluding’ judgment was handed down by Mr Justice Holman on the 12th of July. He did not set out the background to the case, having already set it out in his earlier judgment. For the benefit of readers who have not read that earlier judgment, or indeed my previous post, the background, in a nutshell, was as follows.
The case concerns two English children whose parents separated in 2012. The children remained with the mother, who subsequently married a man who lives in Alaska. In October 2015 she took the children to Alaska, without the agreement of the father, or the permission of the court. The father took steps for the return of the children but did not make an application for their summary return under the Hague Convention.
In January this year, the mother was arrested by the American authorities in connection with alleged child abduction, and subsequently extradited to this country in April. She remains in custody in this country, awaiting trial. Meanwhile, the children remain in Alaska, in the care of their stepfather.
As Mr Justice Holman then explained, the children were clearly habitually resident in Alaska, and therefore it was up to the Alaskan courts to deal with issues relating to their welfare. However, the obvious problem was that their mother was incarcerated in this country, and thus Mr Justice Holman ordered that the proceedings in this country should continue for the time being. The situation was clearly entirely unsatisfactory, and it led Mr Justice Holman to comment:
“Aside from inflicted child abuse or the ravages of war, it would be hard to devise a more emotionally damaging set of facts than those which currently surround the children with whom I am concerned.”
As Mr Justice Holman’s second judgment explained, things have now clarified a little.
The mother has now pleaded not guilty to the various criminal charges in relation to the alleged child abduction. She remains remanded in custody, but a trial date has been fixed to take place in September. The children remain living with their stepfather in Alaska. He, the mother and the father have now filed detailed statements with the court, thus giving Mr Justice Holman far more information to ‘work on’.
The statements indicated that the children were now well settled and flourishing in Alaska (according to the stepfather), but that the elder child had serious negative feelings towards her father, a fact confirmed by a therapist that the child is seeing, but denied by the father.
Obviously, Mr Justice Holman could not make any findings in relation to this allegation. However, he said that the plain facts were that the children had now lived continuously in Alaska for almost three years, and there was evidence which, on the face of it, is credible from the stepfather describing the extent to which they are now settled in Alaska. The father, for whatever reasons, had not made an application under the Hague Convention, despite knowing that he could do so.
In the circumstances Mr Justice Holman said:
“It seems to me plain as a pikestaff that these children must now be habitually resident in Alaska and must have been so resident for an appreciable period of time.”
“It is, frankly, impossible for this court many thousands of miles away, and without the availability of forms of enquiry, such as Cafcass, to start embarking on decision-making here in relation to these children.
“Accordingly, on the basis of the long passage of time, and of the fact that these children must now be habitually resident in Alaska, I will order that these proceedings and all orders within them of a continuing nature are today dismissed and discharged and come to a complete end.”
Therefore, any future welfare decisions relating to the children should be made by the courts in Alaska.
Obviously, the judgment is a warning to any ‘left behind’ parent that if their children are abducted abroad by the other parent then they should act swiftly to seek their return.
You can read the full judgment here.