The Court of Appeal has ruled that a judge was wrong to order that three children abducted by their father should not be returned to their mother.
The children were aged 12, 11 and 8. Since 2010, they had lived in Spain with their British parents and attended Spanish schools.
In May 2017, the parents' marriage broke down acrimoniously. In July 2017, the children travelled to England with their father for an agreed holiday, but when it became clear that he was intending to keep them in the UK, the mother travelled to England and applied for their return.
The judge found that all three children objected to being returned to Spain due to their dislike of their Spanish schools, and that they were aware of the domestic acrimony and could not be present in the same household as both parents without being at risk of harm.
The judge also found that the mother had recently assaulted the middle child and that there would be a grave risk of harm if the children lived with her. He refused her application that the children should be returned to Spain.
The Court of Appeal overturned the decision, saying the judge was wrong to find that the father had established a defence for his actions under the Hague Convention on the Civil Aspects of International Child Abduction.
As regards parental acrimony, the risk to the children arose most acutely from the parents living together, and did not depend upon which country the children were in.
As to the significance of the mother assaulting the middle child, the judge had given entirely disproportionate weight to what was an isolated incident.
The judge's exercise of his discretion was based upon an incorrect conclusion about a grave risk of harm arising from a return and could not stand. He also gave far too little weight to the policy considerations underlying the Convention.
This case was one of flagrant wrongful retention and an almost immediate cutting-off of the children from the parent left behind; exactly the sort of case that the Convention existed to remedy.
The children's welfare was not being served by the arrangements the father had created, with them living in a different country to their mother and under his almost exclusive influence.
Although the making of a return order was contrary to the children's expressed wishes; was strongly opposed by the father; and would mean the children moving back into the Spanish school system, such an order should be made.
If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 0208 004 0065, by email at firstname.lastname@example.org or using the form below.
Case Citations:  EWCA Civ 614RE B (CHILDREN) (2018)CA (Civ Div) (McFarlane LJ, David Richards LJ, Peter Jackson LJ) 27/03/2018