High Court orders father to return children to Spain
In LCG v RL, the unmarred couple had become involved in a relationship and lived together in England. The father had parental responsibility for their two younger children as he was named on their birth certificates, but he was not legally recognised as the father of the two older children because the couple had never married.
When the parent’s relationship came to an end the mother said she wished to return to Spain. She bought a one-way ticket and withdrew the children from their schools and the local cub scouts. On the day of their departure, the father drove the children and their mother to the airport.
Once in Spain, the woman moved in with relatives and the children settled in local schools. Several months later the children came back to England to spend time with the father. He claimed they became upset during the visit and said they did not wish to return.
The mother insisted that they should and when the father did not comply, she launched proceedings under the Hague Convention on the Civil Aspects of International Child Abduction for her children’s return.
Sitting in the Family Division, Mr Justice Cobb said it was clear that the children’s habitual residence had been transferred to Spain when they moved there with their mother and this did not change when they refused to return at the end of their Christmas holiday.
The father had legal parental responsibility for the two younger children and so his consent had been required for the move. However he had given this when he clearly agreed to them travelling to Spain with the mother.
There was insufficient evidence to support the father’s claim that the children would be placed in an intolerable situation if they returned .A Cafcass report suggested that the children had mixed emotions about the situation but the youngest did not clearly express a wish not to return to Spain. The 12 year-old had negative feelings towards her mother but the judge concluded that her view of the family’s situation was “distorted” and she had not thought through the consequences of her statements. She had also changed her mind relatively recently.
Photo by Let Ideas Compete via Flickr under a Creative Commons licence
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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.
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