If a parent breaches an order prohibiting them from removing their child from this country, then one might think that it is obvious what the court should do: order that that parent return the child to this country. The case AW v KJ, however, is a clear demonstration that there is something more important than whether or not an order has been breached: the welfare of the child. Put simply, in proceedings relating to a child, that child’s welfare trumps everything.
The facts in AW v KJ were that the father was of American origin and the mother was from Latvia. They met (I assume in this country) in 2012 and have one child, born in October 2015. Their relationship broke down in early 2016.
After they separated the father suspected that the mother intended to remove the child from the jurisdiction, because she wished to return to Latvia with the child. Accordingly, on the 9th of February 2016 the father issued an application for an order prohibiting the mother from removing the child from the jurisdiction. An order in those terms was made by the court on that day.
Just seven days later, on the 16th of February, the mother took the child to Russia, where her parents live. The removal was in clear breach of the court order, as the mother accepted. The mother and the child have apparently been there ever since, and the mother said that the child was well settled there.
The mother claimed that she had been the victim of domestic violence at the hands of the father, a claim that the father vehemently denied. She said that in the days before she left this country she found herself caring for a young baby in destitute circumstances and living in fear of the father. Taking the child to Russia was an act of desperation.
The only contact that the father has had with the child since the removal was one brief Skype call on the child’s second birthday, which apparently did not go very well.
The father made two applications to secure the return of the child to this country. He made an application in the English court for an order that the child be returned, the subject of this post, and an application for the child’s summary return, under the Hague Convention on Child Abduction. That latter application was due to be heard by the Russian court on the 29th of June last, just four days after Mr Justice Keehan heard the father’s application to the English court. Unfortunately, I do not know the outcome of the father’s Hague application, so cannot comment upon it.
Mr Justice Keehan accepted that the child was well cared for in Russia, where she had been living for two years and four months at the time of the hearing. On the other hand, he was concerned that the father, who was not represented, was “focused, indeed obsessed, on the rights – his rights of parental responsibility, on [the child’s] rights to live in Russia or her rights to live in this jurisdiction.” He said that whilst he accepted that the father loved his daughter, what he did not appear to have at the forefront of his mind were the welfare best interests of the child.
He went on:
“So, in contrast to what I find to be the father’s approach, I must focus on the welfare best interests of the child. She has lived the last two years and four months with her mother in Russia. She has seen her father in all that time just once. As I reminded the father in the course of his evidence, I have the power to order the child to be returned to this country. I do not have the power to order the mother to return to this country. The mother is clear she cannot and will not return to live in this country, for what appear to me to be entirely good and proper reasons.”
“It would appear to me that the father has given no thought to the emotional and psychological damage that would be caused to this little girl if she were forcibly separated from her mother and placed in this country with her father, albeit a loving father, who is in fact a complete stranger to her. Worse still he appears to have given no thought or consideration to the serious emotional and psychological harm that would be bound to be suffered by this little girl were she to find herself in the care of a local authority in this country.
“I cannot conceive in any circumstances how that would be in the interests, let alone the welfare best interests of this little girl.”
Accordingly the father’s application was refused. Mr Justice Keehan did of course accept that it was important that the child should have a relationship with her father, and he therefore listed the case for a hearing to deal with the issue of contact.
The full judgment can be read here.