Court refuses to order return of child despite mother breaching order prohibiting removal

Children|Divorce|August 22nd 2018

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.”

He continued:

“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.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(11)

  1. Helen Dudden says:

    Valuable time is being lost in the emotional relationship with both parents. That means a child not being put in a position, where the failed relationship is highlighted continually.
    We could argue on several points, a court situation is stressful, and not everyone finds it an easy time on this very emotional subject.
    Are there no Contact Centres, is there no way a neutral meeting place could be an answer?
    This is why I favour blame free. Reasons have to be found to complicate. I feel ways need to be found to bring balance.
    I don’t feel Skype is always a good option.
    Was the Mediation to save the marriage or for the child access?
    I know personally how upsetting it is for the child, they are loved and wanted.

  2. Proton says:

    This judge needs to be sacked, promptly, how can he in spite of all the evidence that clearly demonstrates the horrific consequences of father alienation, research , that’s empirical research has causally shown a link between substantive pathological problems a person can face and the relationship they had with their father.
    Life expectancy has been shown to reduce by up to as much as 20 years.
    This pernicious malevolent order cements the ideology underpinning family law. Something has to be done.

  3. Proton says:

    Nothing trumps having a relationship with the father, nothing, to think otherwise is evil in its purest form. The child needs the father, nothing supersedes that nothing john bolch, nothing.

    • yvie says:

      My ex-dil would disagree with that. My son has been firmly squeezed out of the lives of his children and his place has been taken by a stepfather.

  4. Proton says:

    Helen, advocating abrogation of responsibility by desiring a divorce or separation being made easier is not the way forward.
    The way forward is equity of outcome in divorce, take away all state handouts, no maintenance, I know the cries will be men will just run amok and relinquish responsibility themselves, untrue, and in the main we didn’t, we stayed and brought our children up. That’s the way forward.

  5. Fred says:

    “Put simply, in proceedings relating to a child, that child’s welfare trumps everything.”

    Nearly fell of my chair with laughter. Where the courts all too readily, and all too expensively damage the futures of children by permitting the continuing exclusion of children from their Fathers lives, operating to double standards in which evidence given my Mother’s is generally accepted and Fathers quite simply aren’t listened to – by all too prejudicial and badly informed social workers and psychologists who seem to be operating on a body of knowledge and dimwitted assumption better belonging to long past era. The court can only be as good as the systems that surround it. Unfortunately, from my experience that is a pretty poor system when these two respective ‘professions’ are taken into account.

  6. S says:

    Once again another shocking decision by a judge who obviously has no intention of pursuing the breach of a court order by the mother. It appears fathers just don’t have the same rights as mothers, truly shocking in this day and age especially when the judge admits the father loves his daughter.

  7. Bu says:

    The child’s welfare is paramount and trumps everything as long as the child is with the mother. The UK is fast becoming a fatherless society and children being alienated by their mothers.No one is really interested as it does not affect the rich as the poor take the brunt of this activity. The rise of single mothers is seen as the norm in the UK and domestic violence is the main reason used in situations like these to affect the outcome.

  8. spinner says:

    It’s almost as if as a father getting a child contact order is a waste of time and money and any lawyer taking money from a father on the pretext that it will actually mean something is a liar and is exploiting the father when they are at their most vulnerable.

    • beenthere says:

      This x100. Proved by the multitude of children who seldom/never see their fathers despite there being a contact order in place. Also by the number of successful contact enforcement actions (under 2%!)

  9. BillyO says:

    What a farce!
    Once again what is one to take from these kind of outcomes?
    Surely it can only be that engaging the courts and lawyers in the first place is a complete waste of time and money.
    The judge has made sweeping assumptions about the reasons behind the Fathers actions whilst at the same time taking at her word the Mothers reasoning for her actions.

    I’ve said it before and I will say it again. Don’t under any circumstances engage courts and lawyers. It is a total waste of time and resources as is clearly evident here once again.

    The “Professionals” working this system should be ashamed of themselves. You are consistently failing children miserably.

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