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We all understand the importance of a good education. It is something the judges sitting in the family court understand too. A child’s education is one of the things which people who have parental responsibility for a child can make decisions about, and (if necessary) litigate over.

An interesting recent case showed that a child’s educational opportunities will be prioritised over other considerations when a court has to make a decision about his or her future. This case concerned a 15 year old girl of mixed Mexican and British Bangladeshi heritage who had lived with her mother and elder siblings in England after her parents separated.

In 2010 the mother, the girl, and her two older siblings moved to Mexico with the permission of the court. Once there, the children were initially educated in an English-Spanish bilingual private school, but were moved to a Spanish speaking state school after a year. The girl was apparently unhappy in the Spanish speaking school (English being her first language) and was unable to take the courses she wanted. In July this year, the girl told her mother she was going to spend the night at a friend’s house, but instead, with the practical and financial assistance of her father in England, she crossed the border into the USA and then flew to England.  Her mother didn’t know, let alone agree. The girl informed her mother by Facebook that she was in London and intended to remain there.

The mother then made an application under the Hague Convention for an order that the girl be returned to Mexico, her home country. The Hague Convention (or to give it its full title “The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction”) is a multilateral treaty, which regulates which country has the jurisdiction to decide where the child should live, namely the country where the child was habitually resident. It aims to protect children from the harmful effects of abduction across international borders by providing procedures to bring about their prompt return. 93 states worldwide are signatories, so when a child is taken from one signatory state to another, then prompt action before the courts of the country to which they have been taken can secure their return.

When the family court here deals with an application under the Hague Convention it must first determine whether the child was (and remains) habitually resident in the country from which they have been removed (in which case the child must be returned) or whether they have become resident here, in which case there is more discretion.

In the case we are looking at here, the girl was habitually resident in Mexico, and had not lost that habitual residence by virtue of her journey to England. The judge was therefore obliged to order her return unless one of the exceptions set out in the Convention applied – these are very limited but include an objection from the child to being returned if they have attained an age and degree of maturity at which it is appropriate to take account of their views. The objection must be to the country, not to living with the other parent.

The girl in this case objected to being returned to Mexico as she thought her chances of a good education were far better in England. Unfortunately her life with her father and his family since she had returned here had been chaotic. She had witnessed domestic violence in the wider family and her father had evicted her. Unfortunately she had no school place for this new school term and was facing having to drop an academic year. By contrast, her mother had secured her a place in a bilingual school in Mexico on a scholarship basis.

The judge was concerned that the girl would not be able to engage constructively in education in this country if she were not able to live in a settled and secure home. Her difficult circumstances with her father, and the lack of clear schooling options for her in England convinced the judge that her strong desire for a good education would be better served by a return to live a more settled life with her mother and to be educated in a school for which a place was available. He therefore ordered her return to Mexico against her wishes.

In other education-related cases the court has favoured more secular over strictly religious schooling for the greater opportunities it affords to children. It is reassuring to know that the family court will look to what is the best educational outcome for the children it’s concerned with, even if that means disagreeing with the children themselves.

In the meantime, if you would like to talk to us about education, arrangements for children or any other aspect of family law, please give us a ring on 01223 443333 to make an appointment to see Gail, Sue, Simon or Adam.

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