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Father ordered to return child to Sudan despite wishes of child

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I’ve said it here before, but quite often a large part of the job of a judge is simply to decide which party is telling the truth. And so it was in the child abduction case AH v AMH F (Summary return of child to Sudan), decided by Her Honour Judge Hillier in the High Court last October, but only recently reported on the Bailii website. The case is also interesting for other reasons, including the weight to be given to the wishes of the child.

Before proceeding, I should explain something for the benefit of those who are familiar with the principles used to decide child abduction cases involving countries that are signatories to the Hague Convention on Child Abduction. This case was a ‘non Convention’ case, as Sudan is not a signatory to the Convention, and when deciding whether or not to order the summary return of a child to a non-Convention country, the court does not operate by the principles laid down in the Convention. In particular, the court must follow the principle that the welfare of the child is its ‘paramount consideration’ (Hague convention cases are one of the few types of children cases in which this ‘paramountcy principle’ does not apply).

The case concerned ‘B’, a boy aged ten, who has both British and Sudanese Nationality. His mother is a Sudanese National, and his father is a British National, of Sudanese descent. They married in Sudan in 2007 and B is their only child. B was born in Sudan, but he and the mother lived for a short period with the father in the UK. The parents separated and the mother applied to the English court for permission to relocate permanently with B to the Sudan. The application was granted, and B and the mother returned to Sudan in September 2009.

It was agreed that B would return to England to see his father during the summer holidays once he had reached the age of six. He came to the UK in 2016, but was retained by his father at the end of the agreed period, and as a result the mother did not agree to him coming in 2017. She did, however, agree to him coming to England in March last year (when the school holidays began in Sudan), although the exact circumstances were disputed by the parents.

The father maintained that he had no particular intention to keep B here, until he asked him what he wanted to do. He gave B the option of staying here and getting a better education and healthcare. B had told him that he wanted to stay here. He suggested that the mother had indicated that she didn’t mind whether B was educated in Sudan or England.

The mother’s version of events was that she agreed for B to stay in England with his father, but only until the school was due to start again in Sudan, in July. She had never indicated that she agreed to B remaining in England. The father told her in April that he did not intend to return B to Sudan, and enrolled B in an English school, without asking her.

The mother applied for the summary return of B to Sudan.

Judge Hillier did not accept the father’s evidence. She found that he had lied about several things, and had had no intention at all of returning B to Sudan when he collected him at the end of March. On the other hand, the mother had been truthful, and Judge Hillier accepted her version of events.

As to B’s welfare, she found that this would be best served by his returning to Sudan. He had a much stronger connection with that country, having lived there for the vast majority of his life. B had indicated a preference to remain in this country, but Judge Hillier, who had met him, found that he was clearly too immature for her to give very significant weight to his views, and that he had been significantly affected by his father, saying what his father wanted him to say.

Judge Hillier also expressed concern about the father’s behaviour, which she said demonstrated his complete lack of insight into his son’s needs. In her assessment, she said, B will have suffered emotional damage by his father’s unilateral actions, because it was not a planned consensual move. She found that the mother was able to meet all of B’s physical, emotional and health needs, whereas the father seemed “absolutely unable to comprehend his son’s emotional needs”, and therefore could not meet them.

Accordingly, Judge Hillier ordered that B should immediately be returned to Sudan.

You can read the full judgment here.

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, with his content now supporting our divorce lawyers and child custody lawyers

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