Court of Appeal dismisses appeal to apply international child abduction law to "internal abduction"

In Re R (Child) [2016] EWCA Civ 1016 the Court of Appeal dismissed the father's appeal against a decision that the child did not have to be returned home following the mother's unilateral decision to relocate across the country pending the final decision as to where the child would live.

Background

The parents lived together in Kent from late 2013 until January 2016, with their child being born in June 2015. They separated when the child was seven months old, when the mother left the family home and unilaterally returned with the child to live with her parents in the North East of England. The mother later alleged that the father had behaved abusively towards her, which drove her to vacate the family home.

The father put the mother on notice, through his solicitors, that he would be applying for an order that the child be returned to Kent pending the court's substantive decision as to where the child should live long-term. In the meantime, the mother made her own application (without notice to the father) to prevent the child from being removed from her care, which was duly granted so the child remained in North East England. The father appealed and, when that was refused at first instance, he appealed again to the Court of Appeal.

The main focus of the father's appeal was that in the light of the Court of Appeal's 2015 decision, Re C (Internal Relocation) [2015] EWCA Civ 1305 (a case in which Stewarts Law acted for the mother) whereby the principles in international relocation cases were applied to internal relocation cases, the law applied to international abduction cases should also be followed when determining cases involving removal of a child within the UK (referred to by the court as "internal abduction").

In international abduction cases it is usual for the status quo to be restored through the summary return of a child to the country from which they had been abducted (if the countries in question are signatories to the 1980 Hague Convention on the Civil Aspect of International Child Abduction). The father argued this was akin, in internal abduction cases, to returning a child to their usual place of residence within the UK (in this case, Kent).

Key findings of the Court of Appeal

The father's appeal was dismissed.

Providing the leading judgment, Lady Justice Black did not accept the father's argument that the decision in Re C could lead to the presumption that the law in international abduction cases (specifically the summary return of the child to its place of habitual residence) should be applied to "internal abduction" cases. Lady Justice Black said that in her view there is no "presumption or rule of thumb dictating summary return unless there are shown to be good reasons to the contrary". The court should instead consider the particular facts of each case in order to reach a determination as to what would be in that child's best interests and that the court's paramount consideration in domestic abduction cases is the child's welfare.

More generally, Lady Justice Black was critical of the development through case law of rules and presumptions, as she considered the lower courts must have the flexibility required to achieve the right outcome on a case-by-case basis, "in my view, matters are better left to the good sense and considerable experience of the family judges around the country".

Conclusions

In this case the Court of Appeal has made it very clear that international law relating to the abduction of children does not apply when dealing with "internal abduction" within the UK. In such cases the court's paramount consideration is the child's welfare and the welfare checklist.

While the Court of Appeal upheld the decision at first instance that the child should remain, in the interim, in the North East of England, Lady Justice Black made it clear that in many cases it may well be in a child's best interests to return to their home pending the outcome of substantive proceedings. It is, therefore, important to bear in mind that if one or more factual aspects of this case had differed then the decision could well have been the reverse and the mother could have been ordered to return the child to Kent. For example, if the child had been older and settled into a more established routine and attending school or if the location of the mother's new home or the father's job would not permit relatively regular contact with the child.

Emma Hatley commented:

"This case highlights again the serious consequences of one parent acting unilaterally and the importance of arrangements always being based on the best interests of the child.

Usually the involvement of both parents is critical so building a constructive co-parenting relationship, despite emotions inevitably running high at the time of the breakdown of the adult relationship, should be the priority.

With careful handling this can be achieved even across a wider geographical divide".

In essence, this case reiterates the principle that the welfare of the child is of paramount consideration when considering the unilateral, interim removal of a child from their home to another location in England & Wales and that each case must be considered on its own unique set of facts.

Resources

A copy of the judgment can be obtained here.

Click here for more information on the case Re C in which the mother was represented by partner, Emma Hatley.