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Mother ordered to return children to Germany

The recent child abduction case Re B & C is in many ways a typical example of such cases. It has so many features that crop up so often in child abduction cases that it can act as a useful introduction to the subject. I will try to highlight most of those features in this post.

The facts of the child abduction case 

  1. The parents are German nationals and have always lived in Germany, as have their children.
  2. The parents married in 2005 and divorced in about 2012.
  3. They have three children, a boy aged 13 and two girls aged 11 and 8.
  4. After the divorce, the parents shared joint custody of the children, who lived with their mother as the primary carer and had regular contact with their father.
  5. Contact problems began in 2014 (when the mother remarried) and were the subject of court proceedings in Germany in 2016/17. The mother resolutely opposed contact.
  6. On or about the 23rd of March 2018 the mother removed the children from Germany, without the knowledge or consent of the father. The mother kept their whereabouts secret from the father, the German courts and other German authorities.
  7. In December 2018 the father learned that the mother and children were living in this country. He then promptly issued an application under the Hague Convention on Child Abduction for the children’s summary return to Germany.
  8. Unfortunately (and this is sadly one of those classic features of this case), the application was not heard by the English court until last month, nine months after it was issued. As Mr Robert Peel QC, hearing the case in the High Court, commented: “It seems to me that the objective of achieving swift determination and, if appropriate, the return has been found wanting in this case.”

The mother’s position

The mother opposed the application, raising the ‘usual’ defences that there was a grave risk that a return would expose the children to physical or psychological harm, or would otherwise place them in an intolerable situation and that the children objected to the return (and it was appropriate to take account of their views).

The mother also informed the court partway through the hearing that in the event of an order for the return of the children to Germany, she would not accompany them, instead of remaining in this country. I don’t know the mother’s true motives for this (although the judge makes some comments), but such a ‘threat’ is often used as an attempt to persuade the court against ordering a return.

The court’s decision

The judge did not accept the mother’s ‘risk of harm’ defence. The mother had not left Germany through fear of the father’s behaviour, as she alleged, but rather because she feared that the court would rule against her on the contact issue, possibly even placing the children in the father’s care. The German court had considered the mother’s allegations against the father in detail and had still ordered contact.

As to the mother’s ‘threat’ not to return with the children to Germany, the judge was confident that she would not carry this out, but even if she did it was for the German court to decide if the children should live with their father.

Further, even if the mother’s defence had been made out, the judge indicated that he would still have ordered a return, as it was clearly appropriate for the German courts, which had already been dealing with the case, to decide what was best for the children.

As to the children’s objections, the judge concluded that even though the children’s views should be taken into account, they were outweighed by all the other relevant matters in the case. The children were not of an age where their views were determinative, and their views were in part a product of their mother’s antipathy towards the father and her resistance to any idea of contact.

Accordingly, the judge ordered that the children should be returned to Germany.

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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