Supreme Court highlights difficulties faced by lower courts in abduction cases

Published: 1st March 2018

The Supreme Court has highlighted the struggles that lower courts face when dealing with cases of international child abduction. In 'the matter of C (Children)’, the Supreme Court was requested to consider how an application under the Hague Convention may come into effect if a child has become a permanent resident in the destination state. In addition, the Supreme Court looked at whether there was a wrongful retention if the child has been removed from their home country after the agreed period of absence had expired.

Mother takes Children from Australia to England

In this particular case, the mother, who held British citizenship, had asked the father of her children to agree to allow her to take her children back to England, from their home in Australia, before her maternity leave came to an end. The father agreed to a period of eight weeks for them to be out of the country, with them arriving in England in May 2015. The mother then requested for their stay to be increased to a period of one year, which the father agreed to.

Following this, the mother then began searching for work in England, having notified her employers back in Australia. In November 2015, the mother applied for British citizenship on behalf of her children, encouraging her solicitors to write to the relevant authorities to inform them that they would not be returning to Australia, due to the possibility of domestic abuse.

The father then appealed to the High Court, but the judge maintained that the children were not required to return to Australia, as they were habitually resident in England and Wales before the end of June 2016 and under the Hague Convention, a 'mandatory summary return' was not applicable. The judge then also accepted from the mother that she entered England without the intention of permanently residing there, despite later deciding not to return to Australia.

Should the Law be adapted?

As a result of this case, it is clear to see that even agreements between two parents are not definite and may not stand in the courts. Following the outcome, legal professionals across the country are encouraging parents to have any such agreements signed by the court, to ensure that the child must return home upon expiry of the agreement.

Cases like this one show exactly how difficult things can be for families operating internationally, particularly when the other parent takes their children overseas for a period of time that is not exact, for example in the circumstances where a family member is unwell and the estimated return date is unknown. It is thought by many industry experts that the courts should start to look at ways in which these types of situations can be resolved, helping to prevent issues between the families and minimise future problems of parents being separated over such a long distance from their children.

If you or your partner are in dispute about any child welfare or residency issue then K J Smith Solicitors can help. Our team of family law specialists have many years of experience in dealing with all matters relating to children with the utmost care and sensitivity.

For more information or to arrange a free 45 minute consultation, please contact K J Smith Solicitors today on 01491 630000 (Henley on Thames), 020 7070 0330 (London), 0118 418 1000 (Reading), 01753 325000 (Windsor), 01256 584000 (Basingstoke) 01483 370100 (Guildford), 01494 629000 (Beaconsfield) or 01235 375500 (Abingdon).

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