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Re SC (A Child) [2005] EWHC 2205 (Fam)

Mother’s application for residence in Hague Convention proceedings granted following lengthy period after abduction, and father’s contact established.

Re SC (A Child) [2005] EWHC 2205 (Fam)

Family Division: Nicholas Mostyn QC (14 October 2005)

Summary
Mother's application for residence in Hague Convention proceedings granted following lengthy period after abduction, and father's contact established.

Background
This case concerned the child, born in May 1994, of an American father and an Irish mother, who were married in California in 1994. In December 1998, the mother and child stayed in Ireland at the end of an agreed holiday there; the father instituted Hague Convention proceedings in Dublin and, in July 1999, a consent order for the child's return to California was made. The mother and child returned to the USA but did not appear at court; the mother re-abducted the child in the same month, and made her way to England where she assumed names for herself and the child, and successfully avoided detection by the father until October 2003.

The father went to great lengths to search for his daughter: he lobbied the press and politicians in California and Ireland; he set up a website about his daughter; and the details found their way on to many other websites about missing children. Following discovery of the child in October 2003, the father immediately initiated Hague Convention proceedings, and the mother countered with an application for a residence order.

Litigation ensued concerning the exception in Article 12 of the Hague Convention, which provides that 'the judicial or administrative authority … shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment'. The Court of Appeal (in Cannon v Cannon [2004] EWCA Civ 1330) determined that: (1) the notion of 'settlement' encompassed, in addition to physical settlement, an emotional and psychological component; and (2) where a court found settlement to be established, it nevertheless retained a residual discretion to order a return. The matter was remitted for rehearing, and the judge held that the child was 'settled' (in both senses of the word) in England, and he would not exercise his discretion to return; he then gave directions for the questions of residence and contact to be tried.

At this present hearing, the judge acknowledged that the father had clearly been wronged by the abduction of his daughter, and that the mother had practised gross deceits and subterfuges during the period of concealment. However, the issues in this case were not adult issues but needed to be determined by reference to section 1 of the Children Act 1989 (making the child's interests the paramount consideration), which required him, among other things, to have regard to the child's wishes and feelings; and she had expressed the clear view that she did not wish her residence to be changed, and she wanted to have a normal, unsupervised contact relationship with her father. Further, the judge attached considerable importance to the father's 'right to respect for his family and private life' under Article 8 of the European Convention on Human Rights in relation to contact arrangements.

Findings
The judge granted a residence order in favour of the mother; as to contact, he made an unsupervised contact order in line with the father's proposals (fortnightly weekend contact and four consecutive days over the Christmas holiday, but not overnight), with the possibility of being extended to overnight contact following a review.

In addition, the judge commented on the fact that, despite the deceitful actions of the mother relating to the concealment, she had nevertheless brought the child up to be dutiful and respectful, and the child had developed an important societal network during the period of concealment, and that had deepened and widened during the two years that it took for the matter to come to final determination following the discovery.

The judge regretted the fact that the father had chosen to institute Hague Convention proceedings, as no court was likely to order the summary transfer of residence after such a lengthy period of separation between father and daughter; if, following discovery, he had focused on his right to demand a facilitation of the reunion between him and his daughter, and in particular that meaningful unsupervised substantial contact should be initiated at the earliest possible opportunity, he would not have lost a further two years of participation in his daughter's life.

Read the full text of the judgment here