Island knowledge, national expertise

International Child Abduction - Children's Welfare is Always Paramount

Where one parent moves abroad with his or her children, leaving the other behind, the result can be an international tug of war. As a High Court ruling showed, when called upon to play the part of referee in such contests, the paramount focus of family judges is always on the children's welfare.

The case concerned two US citizens who had two daughters, aged 12 and 11. After their marriage came to an end, the mother moved to England on a three-year work assignment, taking the children with her. The father, who remained in America, sought an order requiring the children's return to the USA.

The father's application was made under the Hague Convention on the Civil Aspects of International Child Abduction 1980, which is designed to protect children from the harmful effects of wrongful removal or retention and to ensure the prompt return of abducted children to the state where they are habitually resident.

Ruling on the matter, the Court found that the children could not in any meaningful sense be said to have been abducted. Although the father later came to regret his decision, he had given his unequivocal and informed consent to the mother taking the children with her to England. She had not pre-empted his custody rights or unilaterally decided to retain the children in this country.

Having settled into school and home life in England, the children had in any event become habitually resident here. Their welfare was best served by giving effect to their strongly expressed wishes to remain in England with their mother until she completed her work assignment. To overrule their wishes would be to undermine their confidence in their parents and in authority figures generally.

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