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B (Children)[2005] EWCA Civ 1380

A mother unlawfully removed her children from their place of habitual residence. The father made an application for their return under the Hague Convention but later re-abducted the children. The court found that the father was not entitled to reinstate his originating application as the children were now present in this jurisdiction pursuant to a court order. The proper approach was for a consideration of the children’s welfare under the Children Act 1989.

B (Children)[2005] EWCA Civ 1380

Court Of Appeal: Thorpe LJ, Wall LJ, Black J (27 July 2005)

Summary
A mother unlawfully removed her children from their place of habitual residence. The father made an application for their return under the Hague Convention but later re-abducted the children. The court found that the father was not entitled to reinstate his originating application as the children were now present in this jurisdiction pursuant to a court order. The proper approach was for a consideration of the children's welfare under the Children Act 1989.

Background
The parties met in 1992 in Spain where their three children were born. By 2003, when the mother unilaterally removed the children returning to this jurisdiction, the family were habitually resident in Spain. The father sought the return of the children under the Hague Convention (incorporated in English law by the Child Abduction and Custody Act 1985). The removal was declared to be unlawful under Article 3(a) of the Hague Convention, which effectively removed any defence under Article 13(a) which may have been available to the mother. This left the mother with an argument under Article 13(b). However, before the date of the intended trial the father re-abducted the children back to Spain. After the removal, proceedings commenced for the return of the children to the mother and to the jurisdiction of England and Wales and the father's solicitors came off the record. The judges in London and Malaga collaborated to achieve the return of the children and orders were made including a declaration of primary jurisdiction.

Directions were also made on what should happen to the children on their return. The father and the children returned to this jurisdiction approximately thirteen months after their removal, whereupon the father applied for orders pursuant to section 5 of the Children Abduction and Custody Act 1985 to secure the welfare of the children. The father argued that he was entitled to a determination of his outstanding Hague Convention application and a consequence of that determination would be the return of the children to the jurisdiction from which they had been unlawfully removed, allowing any welfare issues to be determined in the Spanish court. The mother argued that the father's wrongful removal neutralised her removal and rendered his relevant legal argument redundant. The Judge dismissed the father's originating summons, adopting the mother's arguments that the father should not, ". . .be allowed simply to pick up the reins of his abandoned Hague proceedings the driving-seat of whose carriage he so deliberately abandoned." On his application for permission to appeal the father's representatives argued that when the father removed the children back to Spain the court's only powers, under Article 12, were either to stay or dismiss his application. The court was not permitted to make the raft of orders it did. The mother's representatives argued that this was irrelevant as the only issue for the court was whether the dismissal of the father's summons was valid.

Judgment
As the children are in England the English court plainly has jurisdiction over them, firstly, if necessary, to hear the father's Hague application initiated as long ago as 2003; and secondly, if that application is dismissed, to conduct a welfare inquiry under the Children Act 1989 to decide where and with whom the children in due course should live.

The decision to dismiss the father's originating summons was a discretionary decision but was plainly correct. A father who not only abducts his children but does so directly flouting an order to prevent their removal, cannot render a judge powerless. The judge has wide powers to limit and control the default of the contemnor, including the power to order him to purge his contempt by undoing the wrongful act, or alternatively taking the rightful acts that he has omitted to take. This case required a welfare determination which the children had been denied by the strategic warfare that the parents had indulged in.

The father's application for permission to appeal was granted but the appeal was dismissed.

Read the full text of the judgment here