Removing Children from their ‘habitual residence’

Many clients don’t realise that children cannot be removed from the country they habitually reside in without both parents’ consent. Not only can it amount to child abduction (a crime) but the child is most likely to be returned to the home country.

Taylor Chanter Solicitor reports on this recent case.

Yet another case highlights that children should not be removed without consent or a court order.

The wishes of a 12-year-old boy were not enough to prevent him from being returned to his father, especially as it was likely that he had been unduly influenced by his mother.

That was the decision of the Court of Appeal in a case involving a boy who was born in England and had lived in Italy with his English mother and Italian father.

In 2019, the mother decided she would remain in England with him. The father applied for the boy’s return under the Hague Convention on the Civil Aspects of International Abduction 1980. The mother contended that the father did not have rights of custody, so the Convention did not apply.

She further stated that the boy would be at grave risk of harm and placed in an intolerable situation if he were forced to return to his father.

The boy was interviewed by a Family Court adviser and did not wish to give a preference as to where he lived. He expressed his unease at being involved in the decision making as he did not feel strongly about either option.

The judge found that the father had rights of custody and his application for summary return was granted. The mother successfully appealed the order on the basis that there had been a fundamental change of circumstances as the boy had since stated that he wished to remain in the UK.

The father submitted that the mother had influenced the boy between the hearings.

The Court of Appeal found in favour of the father. It held that the evidence did not cross the high threshold of a fundamental change of circumstances for setting aside a return order.

The Hague Convention created a summary jurisdiction intended to ensure that applications were determined expeditiously.

His views should have been assessed in the context of the considerable emotional pressure he was under since the return order had been made. The preponderance of evidence pointed to exercising the court’s discretion in favour of return.

For more information about the issues raised in this article please contact Taylor on 01228 516666.