Family Law Hub

Children's Wishes

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  • The 15-year-old daughter applied for the release of her own Russian and Greek passports, currently held by the mother's solicitors pursuant to a previous order, so that she could travel for about three weeks with her maternal grandmother to Barnaul in Russia. The father opposed the application. In Holman J's view, the risk of non-return was a low one. The daughter was old enough and mature enough to understand the gravity of a solemn promise given to a judge and to her father, and the gravity of breaking it. Formal undertakings would be given by both the mother and the grandmother which would carry sanctions if broken. The mother's passport would be lodged, together with that of the daughter's sibling, so that if the daughter did not return from Russia, there would be no question of the mother and sibling travelling there to join her. The risk was far outweighed by the benefits to her of the proposed trip and her own strong wish to travel there. The trip would therefore be permitted and the daughter's passports released. Judgment, 20/09/2021, free
  • Two young people of Spanish nationality, aged 17 and 14, applied to the court for declarations in respect of their status with a view to taking further proceedings to regularise their legal status. After being detained in France over the 2020 summer holidays as a result of applications made to the Spanish courts by the father, they were currently unable to travel outside of the jurisdiction of England and Wales for fear of their detention or retention, and the possible arrest of their mother. The applicants invited the court to consider making final orders that they would live with their mother, and they sought a new child arrangements order. Russell J DBE unhesitatingly accepted the submission that the facts of this case were exceptional, and it fell within s 9(7) of the Children Act 1989, so an order was required in respect of the older child despite her age. The circumstances of the case required an order reflecting the situation in real terms and releasing the applicants (and their mother) from any legal obligations to spend time with the father. There was no doubt that the children were habitually resident in this jurisdiction and that this court had jurisdiction over matters relating to parental responsibility for them. Judgment, 27/07/2021, free
  • The father appealed against a decision to set aside a return order and to dismiss his application for summary return. The father was an Italian national, the mother a British national, and shortly after their son was born in England they moved to Italy. In 2019, when the child was 10, the mother brought him to England and they did not return. The judge had found that the evidence of the child's wishes and feelings amounted to "a fundamental change of circumstances" and "a fundamental change to the basis on which the previous order was made". In Hayden J's view, although the judge had clearly identified a significant and sustained degree of pressure placed on the child by his mother, he did not seem to have considered how this would have compromised the authenticity of the child's expressed views. The test as to whether there had been a 'fundamental change of circumstances' had to be set high. The mother's application was a clear example of an attempt to reargue a case which had already been comprehensively determined. Asplin and Moylan LJJ agreed. The appeal would be allowed and an order made for the child's return to Italy. The child would not be added as a party to proceedings; to do so would only serve to heighten the conflict that he had struggled to avoid. Judgment, 04/03/2021, free
  • A third set of child abduction proceedings brought by the father pursuant to the 1980 Hague Convention in respect of the same two children, a boy aged 9 and a girl aged 6. The children had been born in England, and the family had moved to Morocco in 2016. The mother had brought the children back to England while the father served a prison sentence for adultery, a criminal offence in Morocco. The return of the children to Morocco had twice previously been ordered, but each time the mother had brought them back to England. Francis J found that the children had been habitually resident in Morocco at the time of the most recent removal to England. He found that the views of the children had been "poisoned", and thus would not make any difference to his decision, which was for the children to be returned to Morocco. The mother was ordered to pay the father's costs on the indemnity basis. The judgment was not anonymised, in the hope that publicity would prevent a fourth abduction. Judgment, 28/09/2020, free
  • The mother applied under the Child Abduction and Custody Act 1985 (incorporating the Hague Convention 1980), and in the alternative under the inherent jurisdiction, for the return of her eight-year-old son to Russia. She contended that the father had wrongfully removed or retained the child in 2019. The father opposed the applications, raising issues of whether, at the relevant time, the child had been habitually resident in Russia and the mother had had rights of custody, whether the child would be at risk following a return, and whether the child objected to a return. The father's own prior applications, including for prohibited steps orders, had been stayed pending determination of the mother's applications. Cobb J found that the son had developed a sufficient degree of integration in life in Russia, while living there for ten months or so, to acquire habitual residence. The removal had indeed been in breach of the mother’s rights of custody. He did not believe that the son would be likely to suffer the “severe degree of psychological harm which the 1980 Hague Convention has in mind” (per Lord Donaldson) and the father therefore failed in his case under Article 13(b). Cobb J did not regard the son's objection to returning as being powerfully expressed or adamant. He reached the conclusion that a return to Russia was in the son's interests, where fully-informed welfare-based decisions could be made in a court to which both parents had ready access. Judgment, 27/07/2020, free

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