4 children who told a High Court Judge their clear wishes to remain in England after spending their school holidays here with their Father have been ordered to return to the care of their Mother in Australia – a stark example of the strict application of the 1980 Hague Convention
This case concerned four children, Simon, Clare, Peter and Harry aged between 9 and 13. In brief the background is as follows: the parents, both of whom are English, married in Australia in 2000. The children were born in England where the family lived. In July 2007 the family moved to Australia. In October 2007 the parents separated and the father moved out from the family home, renting a property nearby. The father returned to England, maintaining Skype contact with the children and initially direct contact in Australia 3-4 times per year.
In January 2014 the children visited their father in England for the first time. They had not returned to England since 2007. The children spent three weeks with their father before returning to Australia that summer, and the parents agreed the following year the children would spend their entire two month Australian summer school holidays with their father in England, the trip was to last until 23 January 2015. The mother accompanied the children on their flight to England but returned to Australia on 4 December 2014.
The mother had fallen behind on mortgage payments in Australia shortly before the children came to England, and on 13 February 2015 she was evicted from her and the children’s home in Australia. On 14 February 2015 the mother returned to England and went to stay with her parents. The mother told the court her intention was to collect the children and bring them back to their home in Australia.
The children were having contact with their mother initially when she returned to England but that contact broke down when the children indicated they did not want to see their mother or have any form of contact with her. On 21 April 2015 the mother instructed solicitors to issue Court proceedings.
The father acknowledged that he had unlawfully retained the children in England away from their country of Habitual Residence.
In defending the mother’s application for summary return the father sought to rely on two of the defences under the Hague Convention 1980, firstly he alleged the mother had acquiesced to the children remaining in England, and secondly that the children objected to returning to Australia. If a defence is found to be made out then the Court has a discretion not to order summary return, it opens a gateway.
On the face of it there was a significant amount of evidence to suggest the mother accepted the children remaining in England, there were a series of text messages (albeit with contradictory ones too) in which she suggested she agreed to the children remaining here, and an application for a Child Arrangements Order (as opposed to summary return from the off set). Furthermore, the mother was homeless in Australia. However, in line with previous cases, the judge looked at acquiescence from a subjective perspective, and found he mother had not intended to acquiesce in the father’s retention of her children in England. She did not make a free and considered choice to return to England but did so due to the financial pressure and control the father had, the mother had little, if any choice. The mother could have, as many parents do, conducted these proceedings in the Court in England, with a solicitor in England, whilst remaining in Australia.
The court considered the recent authorities in looking at the children’s objections, which now requires a much simpler test than the courts have applied hitherto, to simply establish whether there was or was not an objection and whether the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views. The authorities are clear, that a child has to object to returning to their country of habitual residence rather than returning to particular circumstances in that country, in addition, it must be more than a preference. In this case the children were seen by their CAFCASS guardian but also had the opportunity to meet with the Judge. Two of children also wrote letters to the judge expressing very strong wishes to stay in England, and the other children were very clear in their views too, for example, Clare had said ‘I want to live in England with my dad’.
Nonetheless the judge found the children had expressed a preference, in short the preferred England to Australia. Therefore there was not an objection and the gateway enabling the court to decline to order a summary return was not reached.
The children were ordered to return to the care of their mother in Australia and told the father that he should have applied to the Australian court for permission to relocate the children to England.
Interestingly the judge’s finding on the lack of objection on the part of the children was not in line with the CAFCASS report, which concluded that the children, described as ‘highly articulate’ had expressed more than a preference to remain in England and were objecting to return to Australia. It is also notable that the children were not separately represented; children considered competent can, in some circumstances, instruct their own solicitor to represent their views to the court. This has occurred on Appeal in other cases, i.e. the children have been the Appellant’s to their own return order. That is not to say that there would be grounds for an appeal in this case.
What is clear from this case is the extremely strict application of the 1980 Hague Convention and very high threshold that needs to be met to rely on any defence. The father in this case is now left with a judgment which does not paint a favourable picture of him, he has acted unlawfully, one may say he cannot be trusted. If the father now does seek to apply for leave to remove from the Australian Court, the mother may seek to have these proceedings, and this judgment disclosed to the judge in Australia. It is vital to get proper legal advice in matters concerning moving children to or from this jurisdiction, from an expert.
The full judgment may be found here.
