Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
(Family Division, HHJ Clifford Bellamy, sitting as a judge of the High Court, 5 November 2012)
The 12-year-old child had lived with his parents in the USA throughout his life until the mother left with him and flew to the UK. The father initiated Hague Convention proceeding seeking a summary return. The mother defended the proceedings on the basis of the child's objections, submitting that he was now of an age and level of maturity at which the court should take account of those views.
The parents' marriage had deteriorated and the father was diagnosed with Cushing's disease which placed additional pressure on the relationship. The mother was now clear that should would not return to the USA, even if the child was returned.
The Cafcass officer formed the clear view that the child objected to being returned and that he had reached a degree of maturity at which it was appropriate to take his views into account. The child claimed to have been emotionally abused by his father and maternal grandmother but he also objected to a return due to issues of education and social groups.
It would be wholly wrong for the judge to take the mother's decision to remain in the UK into account when determining whether a return order should be granted. To do so would be tantamount to allowing a parent to hold a pistol to the judge's head. As a matter of principle that was an approach that should never be allowed to succeed.
It was clear that the child objected to a return and that his views should be taken into consideration. Unsurprisingly, the child had been unable to separate the question of returning to the USA with returning to live with his father and the restricted lifestyle he felt that would entail. On balance the child did object to returning to the USA and those objections were real, justifiable and reasonable.