Relocation and responsibility: two children’s cases by guest blogger Danielle Day
The recent case of Re RC and JC concerned the abduction of two young children aged two and three.
The mother was Australian while the father is British by birth but is a permanent resident of Australia. The parties married in Australia and lived in Melbourne until 2010 when they returned to the UK. The family were living in Eastbourne in rented accommodation at the time.
The marriage of the mother and father ran into difficulties and the father asked for a divorce three days prior to the abduction on 12 May 2011.
On the morning of 12 May, the mother had left the house with the children after breakfast. The father was unwell and he thought that the mother had dropped the children off at nursery before going to work as a dental nurse. The father later learned that the children had not attended nursery as the mother had phoned to say they were unwell. The father called the dental practice to speak to the mother and was told that she had attended in the morning to say that she was leaving to go back home to Australia. The Police were called and it was soon discovered that the mother had taken the children onto the 3pm flight toMelbourne the same day.
The father made an application under the Hague Convention on the Civil Aspects of International Child Abduction for the return of his children. The mother argued that the father had consented to their removal and that there was a grave risk that the children would suffer physical or physiological harm if they were returned to the UK. The original judge ruled that at the time the children were removed they were not ‘habitually resident’ in theUnited Kingdom, as defined by the Convention, and the father’s application for their return was therefore dismissed.
However, he was granted permission to appeal and the case was listed for a hearing on 30 July 2012. The courts ruled that the judge had erred in her application of the domestic law concerning ‘habitual residence’.
On the day of the hearing the mother suddenly dropped her case and agreed to return with the children. However, the children returned on 23 August 2012 without her. Then on the 29 September 2012 the mother applied to the Principal Registry of the Family Division in London for a residence order – ie an order that the children live with her; a contact order allowing the father to visit; and a ‘specific issues order’ which would allow her and the children to relocate to Australia.
Her applications were heard on the 14 and 15 February 2013. The Cafcass officer described the case as very difficult and unprecedented and could not make a clear recommendation to the court. The judge found the mother to be sincerely remorseful and said that she recognised her behaviour was extremely poor.
Mr Justice Mostyn eventually concluded the mother would be less well equipped to face challenges were the children to stay in the UK than if they returned to Australia. In considering whether to permit the mother to return to Australia, the court considered the list of welfare considerations found in Section 1 (3) of the Children Act 1989, as well as the guidance from the case of Payne v Payne.
The judge said that while he had great sympathy with the father he had to resist the temptation to punish the mother for her actions. The Judge granted the mothers application to take the children to Australia.
Mr Justice Mostyn did however recognise that the mother’s behaviour was “abysmal”, saying:
“Child abduction seldom, if ever, has a happy ending. It has rightly been described as a form of child abuse… It was an act of deliberate cruelty to her husband, the father of her children. It was directly contrary to the interests of the children for them abruptly to have been removed from the society of their father. It has subjected them to two years of uncertainty while they have been taken across the world, back and forth. It has embroiled all members of the family in extensive litigation with days in court in both countries. It has brought the mother to the brink of bankruptcy. Yet it has not been until very recently that the mother has developed any self-awareness. Her attitude was “I did not abduct them; I just took them home”. “
He noted that had the mother simply applied for leave to return home, rather than abduct the children, it was likely he would have granted permission and the entire trauma could have been avoided.
The case concerned a six year old boy whose parents separated before he was born. The father had regular contact for the first 18 months of the child’s life, but later lost touch. Then when the child was six years old the father applied for contact. A Cafcass report was ordered.
The Cafcass officer firmly recommended that the mother had such a fear of the impact contact would have on the child that the harm or risk of harm to the child could not be contemplated. Therefore there should be no contact with the father, the officer advised.
While the officer recognised that there was no objective foundation for the mother’s anxiety, the court rejected both the father’s applications. It said the mother had such a real fear of the father playing a part in the child’s life that it would affect the child’s future stability and wellbeing. The father appealed.
The father’s first appeal was dismissed as the judge found that there was no existing relationship between the father and the child beyond their biological connection.
The father made a second appeal, arguing that the court should not have elevated the mother’s subjective concerns to the extent that they would prevent normal contact between a father and child.
The Court of Appeal referred to the case of Re C and V (minors). In that case it was held that applications for contact and parental responsibility were wholly separate and involved distinct questions which needed to be examined from different perspectives.
Lord Justices Thorpe, McFarlane and Davis held the original judge should have been more rigorous in his analysis and reasoning. They said the claim that the father had no more than a biological link was unfair.
The father’s appeal against refusal of parental responsibility was allowed while the appeal against the refusal of contact was dismissed.
We can conclude from this and other cases that judges will grant parental responsibility unless there are significant reasons not to. In judicial statistics from 2011, we find that parental responsibility was granted in 98 per cent of cases.
With a longstanding interest in family law, Danielle Day first came to Stowe Family Law on a work experience placement in August 2011. She joined the firm as a trainee in October 2011, and looks forward to specialising in ancillary relief matters.
Danielle Day has a keen interest in music and has been a member of the Dearne Big Band for the past seven years playing the trumpet.
Photo of Melbourne by Mary Myla Andamon via Wikipedia under a Creative Commons licence
Share this post
Get free family law updates
Marilyn Stowe’s new book: expert advice on all aspects of divorce, for just 99p!
Divorce & Splitting Up by Marilyn Stowe is the essential how-to book for anyone who is getting divorced or splitting up from a partner. Read more >>
"A must buy that really opens your eyes to what is involved if you are considering or going through a divorce." - Amanda Brown
"This will answer your questions in a way that non-lawyers can understand." - Miss P.
"This really has helped me to see that there is light at the end of the tunnel and I will come out of it a stronger person." - J
Marilyn Stowe on ITV Daybreak & ITV This Morning
Marilyn’s Thought For The Day
The young man knows the rules, but the old man knows the exceptions.
- JamesB on BBC Woman’s Hour: Civil partnerships are a stopgap
- JamesB on BBC Woman’s Hour: Civil partnerships are a stopgap
- Paul on Ministry of Justice seeks to cut expert witness testimony
- Paul on Chief social worker for children appointed
- Paul on A quarter of girls with absent fathers become depressed as teenagers, study claims
Subscribe & Follow
Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
Contact Stowe Family Law
These downloads accompany Marilyn Stowe's latest book: Divorce & Splitting Up: Advice From a Top Divorce Lawyer. After opening, right click to save to your computer.
For more free downloads, visit the Downloads section.