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Re C (A Child) [2006] EWHC 1229 (Fam)

Father’s application for return of abducted child to United States dismissed.

Family Division: Sir Mark Potter P (25 May 2006)

Father's application for return of abducted child to United States dismissed.

The parties, both US citizens, were married in Florida in 1991, and their daughter was born in May 1992. They separated in 1998 after a turbulent marriage and divorced in May 1999. On divorce, sole custody of the child of the marriage was awarded to the mother, with contact to the father. The mother failed to comply with the contact order, and the father obtained a bench warrant for her arrest. In March 2001, the father applied for custody of the child and, in October 2001, the US court granted him temporary sole custody.

In December 2000, the mother and the child had flown to England, to live with the mother's new husband, without the knowledge or consent of the father or the approval of the court. The father was unaware of the whereabouts of the mother and child until February 2006, when he tracked them down via the internet.

The father started Hague Convention proceedings in the UK in March 2006, and the mother defended the proceedings on the grounds that: (1) she did not remove the child in breach of the sole custody rights asserted by the father, as the order on which he sought to rely was made after she had removed the child to the UK; (2) the child had become settled in her new environment in the UK; (3) the child would be exposed to physical or psychological harm if she were ordered to return to the US; and (4) the child, now aged 14, had attained an age and maturity where it was appropriate to take account of her strong objections to return.

(1) The mother conceded that her removal of the child, without the approval of the US court, constituted a breach of Article 3. However, the President found that the basis on which the father asserted his right to proceed was false, thereby damaging his credibility, since none of the evidence supported his claim that the mother was aware of the court orders made in 2001.

(2) The President considered evidence from the mother and father, and from the CAFCASS officer who had interviewed the child as to her wishes and feelings; he stated that the word 'settled' has two constituents: the first is more than mere adjustment to new surroundings, and involves a physical element of relating to, being established in, a community, and an environment; and the second is an emotional and psychological constituent denoting security and stability. He found that the necessary physical element was satisfied, and also that the mother and child had integrated into a small community of supportive friends and relatives by marriage. In his view, the fact that a child or teenager was 'unsettled' in her own emotional or psychological state did not demonstrate that she was not well settled for the purposes of the Convention.

The only question mark hanging over the continued residence of the mother and the child in the UK was their immigration status, since their last leave to remain had expired in May 2003. However, they had not been given any warning or notice of deportation, and an application by the mother for leave to remain was still pending. Accordingly, 'settlement' within the meaning of Article 12 of the Convention was established.

(3) There was insufficient evidence before the court to find whether the defence of risk of physical or psychological harm was established; however, in view of the conclusion reached concerning the child's objections to return, it was unnecessary to make a definitive finding.

(4) The President found that the views expressed by the child were clearly her own, and her unwillingness to return to the USA was not unduly influenced by her mother.

For all these reasons, and giving primary concern to welfare considerations, the President declined to exercise his discretion to order the child's return: not only would an order to return uproot her in her vulnerable early teenage years, but it would also destroy the emotional and educational stability that was within her grasp after sustained effort by family, friends and counsellors to that end.

Digest prepared by Peter Smith

Read the full text of the judgment here