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Child abduction within England - the principles the court should apply

View profile for Simran Gupta
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A case recently came before the Court of Appeal whereby the court was able to consider and provide guidance on the manner in which abductions within the Jurisdiction of England and Wales should be dealt with and whether the same principles that apply when considering international child abductions should apply to these internal abductions.

This case concerned a Mother who was alleged to have abducted the parties’ child from their home in Kent, where the family had always resided, to the North East of England. The Father asserted that the Mother had acted wrongfully without his knowledge and consent. He sought the return of the Mother and Child to Kent, as would be the case with an international child abduction case, thereby enabling the Courts in Kent to adjudicate on matters concerning the welfare of the child.

The matter initially was heard before the Family Court in Newcastle whereby the Mother applied for and was granted a Prohibited Steps Order preventing the Father from removing the child from her care. The Father responded by applying for the return of the child to the family home in Kent. The District Judge hearing the matter applied the welfare principles to the facts of the case and dismissed the Father’s application on the basis that a return to Kent and potential return to the North East thereafter would be too disruptive for the child and further that there were concerns about the welfare of the Mother if she were to return to Kent in light of her allegations concerning the Father’s behaviour and her medical condition. 

This decision was appealed by the Father who maintained that, in accordance with the principles outlined in Re C (Internal Relocation) [2015] EWCA Civ 13056 (Re C) the court should take the same approach as it does in international relocation cases whereby it will seek to restore the status quo and thereby allow the home court to adjudicate on any welfare decisions concerning the child. He also challenged welfare analysis conducted by the trial judge in respect of protective measures offered by the Father. 

The appeal judge at first instance dismissed the appeal on the basis that the trial judge had been correct in his approach.

The Father then appealed to the Court of Appeal on the same principles.

With regards to the Father’s Re C argument, the Court of Appeal dismissed that as it considered that in internal relocation cases the child’s welfare is the paramount consideration. Furthermore, that when applications are made following an internal abduction these are likely to be applications pursuant to Section 8 of the Children Act 1989, where once again, the welfare of the child is the paramount consideration. The Court of Appeal was of the view that no additional principles or glosses should be added which may detract the Court from acting in the best interests of the child.

The Court further noted that the international principle of habitual residence which gives rise to a return could not be relied upon in internal abduction cases as a child is habitually resident in a country not in a specific area.

The Court then applied Re J (Child Returned Abroad: Convention Rights) [2005] UKHL 40 (Re J) and noted various key principles that can be taken from those proceedings (paragraph 26); firstly, that The 1980 Hague Convention and the principles contained therein should not be extended to non-convention cases. Secondly, that in the case of wrongful removals from one country to another, the welfare principle is determinative. Thirdly, that it may be in the best interests of the child to be summarily returned to his home country but this is not a presumption, still less a rule. The Court took the view that these principles further added to the proposition that welfare is the primary consideration in cases concerning domestic abductions.

The Court of Appeal dismissed the father’s appeal and highlighted that, in internal abduction matters, the overarching principle remains the welfare of the child and as such there is no place for summary returns.

The link to the Court of Appeal Judgment can be found here: http://www.bailii.org/ew/cases/EWCA/Civ/2016/1016.html

At TV Edwards LLP we regularly act for both Applicant and Respondents in both domestic and international relocation and abduction proceedings, we have specialist solicitors whose expertise in this area has been recognised by their obtaining accreditations and panel memberships. We understand that situations concerning child abduction and relocation can be stressful and upsetting and that those affected need quick and effective advice and action taking. If you need legal advice relating to child abduction proceedings then please contact our specialist International children law team on 0203 440 8000 or by email: A_FamilyReferrals@tvedwards.com

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