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Oliver Millington on What principles should the Family Court apply in cases of domestic abduction?

Articles | Mon 31st Oct, 2016

What principles should the Family Court apply in cases of domestic abduction?

In Re R [2016] EWCA Civ 1016, the Court of Appeal has recently considered the approach that the court should take in cases involving domestic abduction. in other words within the jurisdiction of England and Wales. The facts of this private law case are straightforward: the parents of child H were living together with H in Kent until the mother relocated with H to the north east of England without the father’s consent or knowledge.

Proceedings commenced in the Family Court at Newcastle with an application by the mother for a prohibited steps order to prevent the father removing H from her care. The father in turn applied for an order which would require the mother to return to Kent with H and sought to transfer the case to a court in Kent.

Before the District Judge at first instance the father advanced an argument, based upon the Court of Appeal’s decision in Re C (Internal Relocation) [2015] EWCA Civ 1305, that the court should take the same approach to the case as would be taken where a child is unilaterally removed abroad, restoring the status quo by returning H home forthwith and allowing the court in Kent to determine the issues between the parties. The district judge was not persuaded by this legal argument and made his decision by applying the welfare principle in section 1(1) of the Children Act 1989 and having regard to the welfare checklist in section 1(3) of the Act in the usual way. The District Judge refused the father’s application. The father appealed to a Circuit Judge where the argument based on Re C was again advanced and again rejected.

The Court of Appeal, in common with the lower courts, was unpersuaded by the Re C argument. As Lady Justice Black sets out in paragraphs 18 and 19 of the judgment:

“18. I do not accept the starting premise of the father’s case, that is that Re C represents a sea change in the law which in some way dictates a new approach to cases where one parent unilaterally moves a child from their home to another place in England and Wales. Furthermore, I am equally unable to accept the argument built upon it, namely that there is or should be a general principle that summary return to the place where the child was formerly resident should follow upon such a move unless there are good welfare reasons why that should not happen.

19. I have already explained that Re C established that the child’s welfare is the paramount consideration in internal relocation cases. So it is also in proceedings that result from a unilateral move of the type that took place here. Such proceedings will normally be Children Act proceedings. One or the other parent (or both) will be seeking an order under section 8 of the Children Act 1989. By virtue of section 1(1) and section 1(3) of that Act, it is by the application of the welfare principle and the use of the welfare checklist that the outcome is decided. These are the principles that Parliament has decided should determine the case. There is no room for supplementary principles or presumptions devised by the courts and there is a significant amount of jurisprudence which demonstrates that glosses and sub-tests can distract unhelpfully from the core principles and restrict the ability of the courts to respond flexibly and to achieve what is in the best interests of a child. It is one thing for a presumption or supplementary principle to be dictated in rules or statute (such as section 1(2A) of the Children Act 1989) and another for the courts to add to the law in this way.”

The Court of Appeal went on to consider the application of Re J (Child Returned Abroad: Convention Rights) [2005] UKHL 40, described by Lady Justice Black as “the most illuminating of the available authorities” [paragraph 22]. The following key principles can be gleaned from Re J [paragraph 26]: first, 1980 Hague Convention principles have no place in non-Convention cases. Secondly, in the case of wrongful removals from one country to another, the welfare principle is determinative. Thirdly, it may well be in the best interests of a child to be summarily returned to his home country but this is not a presumption, still less a rule.

In her final analysis of the father’s argument based on Re C and Re J, Lady Justice Black concludes as follows [paragraph 27]:

If it were to be correct to align domestic abduction cases with international abduction cases, it seems to me that it is to Re J that one would have to turn for the applicable international principles. That authority leaves us, I think, in pretty much the same position in relation to domestic abductions as I have reached working from first principles. The 1980 Hague Convention has no application in domestic cases and we know from Re J that it should not be applied by analogy. Re J tells us that the governing principle in international non-Convention abduction cases is welfare. So it is in domestic abduction cases. Paragraph 32 of Re J gives some indication of the sort of considerations that may be material in international cases and it may obviously be of assistance in domestic cases too. I do not think it was intended to establish a presumption however, or any sort of rule of thumb, and it seems to me clear that the weight given to the various considerations must be tailored to the individual case. In short, in a domestic abduction case, as in a non-Convention international abduction case, the judge must derive the answer by applying section 1(1) of the Children Act to the particular facts of the case before him, having regard to all the relevant features, including the matters listed in section 1(3) (whether because the circumstances are within section 1(4) of the Act or otherwise by analogy). This is also, of course, the approach that must be taken to an internal or external relocation case.”

So in short: no summary return orders in cases of domestic abductions. It begs the question of course, to where exactly would such an order have returned a child in any event? The child’s former home, the town, the county or maybe the local court area? For now, at least, that remains a theoretical question.

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