Spotlight
Family Court Practice, The
Order the 2021 edition due out in May
Court of Protection Practice 2021
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
JM v RM [2021] EWHC 315 (Fam)
(Family Division, Mostyn J, 22 February 2021)Abduction – Wrongful retention – Hague Convention application – Mother decided not to return to Australia with children – COVID 19...
Re A (A Child) (Hague Convention 1980: Set Aside) [2021] EWCA Civ 194
(Court of Appeal (Civil Division), Moylan, Asplin LJJ, Hayden J, 23 February 2021)Abduction – Hague Convention 1980 – Return order made – Mother successfully applied to set aside due...
Disabled women more than twice as likely to experience domestic abuse
The latest data from the Office of National Statistics shows that, in the year ending March 2020, around 1 in 7 (14.3%) disabled people aged 16 to 59 years experienced any form of domestic abuse in...
The President of the Family Division endorses Public Law Working Group report
The Courts and Tribunals Judiciary has published a message from the President of the Family Division, Sir Andrew McFarlane, in which the President endorses the publication of the President’s...
HMCTS updates online divorce services guidance
HM Courts and Tribunals Service have recently updated the online divorce services guidance with the addition of guides for deemed and dispensed service applications, alternative service...
View all articles
Authors

ABDUCTION: LCG v RL [2013] EWHC 1383 (Fam)

Sep 29, 2018, 21:08 PM
Slug : abduction-lcg-v-rl-2013-ewhc-1383-fam
Meta Title :
Meta Keywords :
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : Jun 20, 2013, 02:30 AM
Article ID : 102889

(Family Division, Cobb J, 23 May 2013)

The Spanish mother and British father had four children together aged between 12 and 4. The father had parental responsibility for the two younger children by virtue of being named on their birth certificates but as the parents were unmarried he did not have parental responsibility for the two older children. The family lived in England throughout the relationship and the mother regularly took the children to Spain for holidays in order to visit relatives. When the relationship came to an end the mother and father had a number of discussions as to their long-term future and where they would live, with the mother asserting a wish to return to Spain.

The mother purchased one-way ticked to Spain for herself and the children. The mother provided notice to the schools that the children would not be returning for the following term and sent an email to the leader of the cub group that they were moving to Spain which was sent via the father. Thereafter the father drove the mother and children to the airport for them to fly to Spain.

The mother and children moved in with family members and the children joined Spanish schools. Five months after the mother and children flew to Spain the children travelled to England to have contact over Christmas with the father. There was no dispute that it was intended for the children to return to Spain after Christmas.

The father claimed that the children became upset during the visit and didn't want to return to Spain. The mother insisted that the children should return. When the father stalled the mother applied for a summary return of the children pursuant to the Hague Convention.

On the facts the children lost their habitual residence in England when they flew to Spain with the mother. Having regard to the integration test found in Mercredi v Chaffe they had become habitually resident in Spain by the time the father failed to return them.

By virtue of the father's lack of parental responsibility for the two older children, the mother, by virtue of English and European principles, had the right to determine their habitual residence. However, in respect of the two younger children, the father's consent was required in order to alter their habitual residence.

On the facts of this case, the father's agreement to the younger children's move to Spain was clear, and unconditional, and was in that sense effective to facilitate a change of habitual residence. It was a true bilateral agreement; the agreement was to their stay being indefinite.

Even if that interpretation was wrong, the father's conduct before and after the children left for Spain was capable of amounting to acquiescence.

The father claimed the children should not be returned due to their objections and due to the fact that they would be placed an intolerable situation. It was clear from the evidence of the Cafcass officer that all the children felt torn by the situation and that the 12-year-old had many negative feelings about her mother currently. However, the views of the 10 and 8-year-olds fell short of clear objections to returning to Spain. There was insufficient evidence to make out an intolerability defence.

While the 12-year-old was of an age and degree of maturity at which it was appropriate to give weight to her views the judge did not give them determinative weight. She had a distorted view of recent family history, it was clear she hadn't thought through the consequences of her viewpoint and she had only weeks previously been less confident of her position. The judge ordered the return of all four children to Spain.

 

Categories :
  • Archive
  • Judgments
Tags :
Provider :
Product Bucket :
Recommend These Products
Related Articles
Load more comments
Comment by from