When only one of two children is removed to another country

family law

I don’t recall previously reporting about a ‘non-judgment’, but I’m going to today. The ‘non judgment’ is, in fact, one of two recently handed down by Mr Justice Holman in child abduction cases. In each case he explained what a ‘non-judgment’ is by beginning it with these words (or similar):

“What follows is not a judgment in any conventional sense, for I am not, by these words, deciding or ruling upon anything.”

So what exactly was this ‘non-judgment’ about, and why do I consider it to be noteworthy? To answer the latter question first, I think it dealt with a situation that may not be that uncommon (albeit that, as Mr Justice Holman pointed out, the case was unusual for the almost complete polarisation of the positions of the parties).

To answer the first question, the facts of the case were as follows. The parents are of Pakistani origin, although the father has lived in America for many years. They married in Pakistan in 2005, after which the mother moved to America to live with the father. Both are now US citizens.

There are two children of the marriage, a son aged 8 and a daughter aged 5. Both were born in the US and are also US citizens.

On 1 May this year the mother travelled to England with the daughter. They have not returned to the US, and the father issued an application under The Hague Convention for the summary return of the daughter to the US.

The mother has raised two defences to the application. Firstly, she contends that, rather than her abducting or unlawfully removing the daughter from America, the father insisted upon her travelling to England with the daughter (but not the son) on a one-way ticket – she was therefore “stranded” here by the father. Secondly, she raised the defence pursuant to Article 13(b) of the Convention, that the return of the child to America would expose the child to a grave risk of physical or psychological harm, or otherwise place her in an intolerable situation.

Mr Justice Holman explained the background to that defence:

“In support of that defence, the mother has made one statement in these proceedings. In that statement, she asserts at paragraph 7 that she, “Suffered twelve years of severe psychological, emotional, and physical torture and abuse by [the father] and…” her parents-in-law. She alleges, as part of the background to the whole marriage, that the father is or was “a chronic alcoholic”. At paragraph 20 of the same statement, she refers to, “What, to me, had become a living hell for me and my children.””

The father totally denies every allegation made by the mother.

As Mr Justice Holman said, the case would have been fairly straightforward if the daughter was the only child. The court would simply have to consider the Article 13(b) defence, and whether it could be sufficiently ameliorated by appropriate protective measures, should the mother and child return to America. However, here the mother was in an acute dilemma. If her allegations were only partly true, it is impossible to envisage that the father would ever agree voluntarily to the son travelling to England in order to see his mother and sister here. Further, the courts in this country would have no jurisdiction to deal with any issue in relation to the son.

Accordingly:

“…if the mother wishes ever to see her son again in the foreseeable future, and wishes her son and daughter ever to see each other again in the foreseeable future, she has no realistic alternative but to return sooner or later to America and sort out the position there, either by agreement with the father or by litigation in the courts of America.”

The reality, said Mr Justice Holman, was that:

“…what needs to be considered at this stage, either by agreement between the parents or by adjudication by the court, is the protective measures and safeguards which should be, and can be, put in place to provide as much protection to the daughter and her mother as is appropriate until matters can be properly and fairly resolved in America, if necessary by litigation.”

The mother made it quite clear through her counsel that she could not contemplate returning to America unless the protective measures were already enshrined in some way within appropriate proceedings in America, to ensure their enforceability there and that the mother could safely rely upon them. This approach was accepted by the father’s counsel.

Accordingly, it was agreed between the parties that the case would be adjourned, so that either appropriate proceedings could be commenced in America or, failing that, the parties could try to agree the protective measures, and the father produce evidence about the enforceability of any undertakings he may give to the American court.

As I indicated above, I think it may not be that unusual for only one of two or more children to be removed to another country. In such cases, the parent removing the child will surely often face a similar dilemma to the mother in this case.

The full report of the ‘non-judgment’ can be read here.

Photo by Michael Coghlan via Flickr under a Creative Commons licence.

John Bolch

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.

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