Hunting the child

By 21 November 2012Children, Law news

Family law is a much more complex world than it was a generation ago. Other than the rise in divorce and the decrease in the number of people getting married in the first place, the most important factor is the availability of international travel. The world becomes smaller every day and people are increasingly likely to meet and form relationships with others from outside their own background, nationality and culture. As some of those relationships break down, we see more arguments in the courts about such issues as the appropriate place to get divorced, whether any sort of financial agreement was in place before the marriage (pre-nups are more common abroad), and in which country any children should be brought up. Alongside these issues, where families cross borders, international child abduction is becoming a more common occurrence.

In most cases, parents manage to agree where it is best for their children to be brought up. If, however, one of the parents wants to move to a different country with the children and the other does not agree, it is possible for the parent who wants to move to make an application to the court for “leave to remove” the children abroad. The court must then decide whether it is in the children’s best interests to stay or go, and this will usually include a reconsideration of the children’s general living arrangements should the parent who is potentially left behind also apply to the court for an order that the children reside with him or her. When considering the children’s overall welfare, the court will look at a number of different factors, including how well-thought-out the parent’s plans in the foreign country are, proposals for continuing contact with the other parent after the move, and the likely effect of refusing permission to live overseas on the parent who wishes to go.

It is more often than not the case that the courts generally grant permission to any mother whose children live with her most of the time after family separation, to go back to her country of birth; in fact they regularly grant permission for relocation to any parent with firm and coherent plans. Recently however, the law has been showing some signs of movement, partly because shared care arrangements are more common than they were when most of the case law in this area developed. There is now perhaps greater consideration of the child’s right to have meaningful involvement with both parents after separation, and the effect on the child if regular contact with either parent is disturbed is assessed more thoroughly.

But what if the parent who wants to move abroad with the child just does it, without getting agreement from the other parent or permission from the court? This week a Mexican mother’s application for the return of her child under the Hague Convention on Child Abduction has been dismissed by the High Court in the case of Hunt v Hunt. The twist in the tale is that the mother was the original abductor; she made her application because the father had effectively abducted the child back and secured her future in England.

Here, the father was British and the mother was of dual nationality: Mexican and British. Their six year old daughter, L, was born in the UK and lived here until 2008 when the family travelled to Mexico for a holiday. The father returned to England expecting the mother to follow soon after, but the mother refused to do so and went into hiding with the child for the next three and a half years, living a fugitive lifestyle and enrolling L into schools under false names. The father very quickly started court proceedings under the Hague Convention to secure L’s return to England.

Early in 2009, the English court declared the child to be a Ward of Court and that she remained habitually resident in England, so the English courts retained jurisdiction over her. Wardship is quite rarely used by the court these days as since the Children Act of 1989, most circumstances for dealing with arrangements for and protecting children are covered by statute, but in international situations this old-fashioned remedy can still be immensely useful. It means the court is treated as another parent to the child and no decisions about the child can be made without its involvement. As we will see, that was pivotal in this case.

The mother refused to engage with the English courts and the Hague Convention proceedings that went on in Mexico. In March this year however, she was finally apprehended and brought to court in Mexico. She and the father apparently agreed that L would stay in Mexico with her mother but would have staying contact in the UK with her father, starting immediately after that point and extending for three months. (If they did not agree, the parents were told that proceedings in Mexico about L could take up to 18 months to resolve and L would be in an orphanage during that time – so both parties were clearly under pressure to come to an agreement.) L came to England and her father refused to allow her to go back. So this time, it was the mother who invoked the Hague Convention in the English court to get L returned to her care in Mexico.

Not so fast, said the court: because the child had been a ward of the English court, the agreement between the parents about L’s habitual residence and arrangements could not stand as the English court had not scrutinised it. Further, as was clear from the original court hearing and as the mother actually conceded, L was resident in England throughout the period up to her return as wrongful retention of a child abroad cannot legally change habitual residence (and the court had noted L’s habitual residence in the wardship order). The Mexican court had no power to make any order about L, and the Hague Convention did not apply – effectively, the child was back where she belonged.

Interestingly, because of technical arguments about the role of the Mexican justice system, the Mexican government intervened in this case. As a result of the high stakes and complexity, it is possible that this decision will now go to appeal. Although to some extent this judgment is a stricter interpretation of the Hague Convention than in other recent decisions, the overwhelming moral is clear: the English courts will go to significant lengths to achieve the return of children wrongfully removed from the jurisdiction, even overriding foreign judicial systems in some cases. Those who abduct children from their country of settled residence do so at their peril.