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(Family Division, Keehan J, 21 August 2013)
The parents had their child in the USA and predominantly lived there although they travelled to Australia, Thailand and the UK. While in Australia the mother gave birth to the second child and the couple separated shortly afterwards but made shared care arrangements for the children. The family eventually came to an agreement to move back to the USA.
The mother and the younger child flew directly to the USA while the father took the 9-year-old child via Thailand which the mother agreed to and then the UK to which she did not consent. After a few weeks in the UK the father contacted the mother stating his intention to remain in the UK with the child and not to return to the USA. The mother issued custody proceedings in the USA and in the UK she sought a return of the child pursuant to the inherent jurisdiction and the Hague Convention. The father resisted both applications.
During the hearing the father claimed he had never agreed to a return to the USA and that he also only decided to remain in the UK while he was in Thailand. The judge found that the father had blatantly lied to the court in order to bolster his chances of keeping the child in the UK. It was clear that he had already decided to renege on his agreement to go to the USA prior to leaving Australia. The mother was an entirely straightforward and credible witness.
The Cafcass officer reported that the child did not necessarily object to returning to the USA but did object to being separated from the father which did not fulfil the criteria of Art 13 of the Hague Convention.
In applying a purposive interpretation of the Hague Convention rather than a narrow one it would be absurd to the return the child to Australia where she had no family members. The Convention, properly interpreted permitted the court to order the child's return to the USA for a welfare determination. Even if that interpretation was not permitted the court would order a return pursuant to the inherent jurisdiction.
On the basis that the child was wrongfully removed from Australia, that she had never lived in the United Kingdom before, that both parents rightly and properly at an early stage believed it was important for the two girls to live close to each other so they might have regular contact with each other and have regular contact with both parents, it was overwhelmingly in the child's best interests to be returned to the USA.
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