On the face of it, the father’s two objections to the mother’s application for the return of their son to Turkey in the recent case K (A child : Hague Child Abduction Convention) seemed to have some merit. However, the court still ordered the return.
The background facts of the case were, briefly, that the mother is Turkish and the father has dual Turkish/British nationality. The parties met in Turkey in 2006 and married in 2007. Their son, ‘K’, was born in Turkey in 2007 and was eleven years old when the mother’s application was heard by Mr Darren Howe QC in the High Court last July (as with many child abduction cases, the report of the judgment was only published much later (last week on Bailii in this instance), possibly to ensure that the return had taken place before the publication).
The parents first separated in 2016, but there was then a reconciliation. The father left Turkey in October 2016 and relocated to England. There was some dispute as to whether he relocated with the intention of the remaining family members joining him, but this was not a matter upon which the judge had to adjudicate.
The mother and K remained in Turkey. By April 2017 the marriage had finally broken down.
In September 2017 the mother arranged for a paternal family member to collect K from Turkey and take him to England for an agreed holiday with his father. K flew to England on the 9th of September and was due to be with the father for a week. That was then extended for a second week, and K was to return by no later than the 23rd of September.
I will not go into the detail of what happened next, but suffice to say that K was not returned to Turkey. In March 2018 the mother made an application under the Hague Convention for his summary return (she claimed that she had not made the application earlier, as it was not until January 2018 that she knew of the Convention).
The father accepted that K was habitually resident in Turkey prior to September 2017, and that his retention of K in England was wrongful within the meaning of the Convention. However, he raised two defences to the mother’s application:
- That the mother had acquiesced in the father’s retention of K in England. In particular, the father relied upon an email sent to him by the mother on the 23rd of September 2017 in which she said, amongst other things, that if K really wanted to stay in England, that he could, and that “I will allow you to take K.”
- That K objected to a return to Turkey, and had attained an age and degree of maturity at which it is appropriate to take account of his views (this latter point was accepted by both parents). The court had appointed a Cafcass officer to ascertain K’s views, and the officer reported that K indicated that he did not want to return to Turkey, giving as his reasons the political situation in Turkey, that he would get a better job in England and that the schools were better here.
All in all, it might appear at first glance that these defences were quite strong. However, the judge did not find them to be made out.
As to the acquiescence defence, he found that the mother had not at any time acquiesced in the father’s retention of K in England. The context of the mother’s email had to be considered. At that time she had not been allowed by the father to speak with K on the telephone. She did not know of her rights under the Convention and was desperately putting forward proposals in an attempt to arrange telephone contact. In any event there was never a concluded agreement regarding K remaining in England, as there never was any contact.
As to K’s wishes, the judge accepted the Cafcass officer’s view that he had been influenced by his father. However, more than that he found that K’s presentation of his wishes amounted to no more than a preference or a wish, and did not reach the threshold of an objection.
Accordingly, the judge made an order directing that K be returned to Turkey forthwith.
The message, I think, from this case is clear. If you are going to succeed with a defence to a Hague Convention application, then your defence really needs to be watertight. The rationale behind the Convention is that a child should normally be returned to its ‘home’ country, and it is for the courts of that country to make decisions about future arrangements for that child. That is what should happen, and only in clear cases will a return not be ordered.
You can read the full judgment here.
