The Court of Appeal has clarified the question of how courts should deal with cases where one parent takes a child to live in a distant part of the country without the agreement of the other.
The case is Re R (Child)  EWCA Civ 1016 (20 October 2016) and the full judgment can be found here.
We don’t think it is very easy for non-lawyers to digest (it’s not that easy for lawyers as it happens!) so we thought we’d try and break it down.
The facts in this case
In this case, a mother took the child from Kent to the North East, which is pretty much as far away as you can get without leaving the country. The father wanted the court to treat it as child abduction and to order the return of the child to Kent. Whilst there was no disagreement that the child should stay with the mother whilst the case was resolved, the father had asked the court to order that the mother move back to Kent with the child whilst long term plans were made. He appealed twice – the judgment is the decision on the second appeal.
What is abduction
The first thing to understand is what child abduction is and how it is dealt with when it happens. Child abduction is the removal of a child from one country to another without lawful authority. Usually abduction is by one parent following a separation, but anyone who moves a child from one country to another when they are not legally entitled to do so will be abducting them. Child abduction is a criminal offence. Many countries are signed up to something called the Hague Convention, which is effectively a scheme designed to deal swiftly with abductions of children from one signed-up country to another. The ethos of the convention is that where there has been a “wrongful removal” or a “wrongful retention” (keeping a child abroad longer than they are supposed to be abroad) of a child the court in the country of arrival should normally order a swift return (“summary return”) to the home country so that the court where the child is from can make longer term decisions. Abduction is only abduction if a child is taken from the place where they are habitually resident to somewhere else, so it is often very important to to decide where a child was habitually resident to decide if there has been an abduction at all. Habitual residence is a tricky thing to define but it is probably best thought of as the place where a child is based or established. In international abduction cases to countries that are not signed up to the Hague Convention the summary return arrangements don’t apply – so not all cases are dealt with the same. There is a lot more to child abduction, habitual residence and the law around it than this, and things like habitual residence get even experienced lawyers in a pickle – but this thumbnail sketch is good enough for the purposes of this post.
Parallels with internal removal
Sometimes child abduction is carried out for the purpose of minimising the role of the other parent in the child’s life, other times it has that effect regardless of the motivation of the abducting parent. This of course is also true of removals of children from one area of the country to another. Whether or not there is a border crossing between the old and new home there are likely to be some parallels in terms of motivation.
Should the court treat these internal removals like abduction cases?
So, when the father in this case wanted the case to be treated as if it were child abduction, he seems to have been saying that he wanted the court to order the summary return of the child to its home base (Kent) whilst the longer term plans were being sorted out, and wanted the court in Kent to deal with the case. The judge in the North East didn’t agree with that approach, so the appealed. One of the father’s arguments had been that he would be disadvantaged by the child becoming established in the North East and having reduced contact with his father whilst the case was being sorted out. The judge had taken into account a number of facts when deciding what to do (the child’s medical needs, the mother’s allegations against the father, the mother’s need for support etc).
In his appeal the father relied on a previous case about relocation to another part of the country (a case called Re C). However, the Court of Appeal emphasised that that all Re C told us was that both international relocation or internal relocation type cases should be dealt with in the same way – by treating the welfare of the child as the most important issue, and by using the welfare checklist in s1 of the Children Act as a tool to work that out.
However, the Court of Appeal pointed out that relocation (i.e. planned and agreed or court approved removal) is not the same as abduction. In abduction cases one parent has taken matters into their own hands in a way which might be harmful to the child or which might be unfair to the parent left behind – the Hague convention is designed to prevent a parent achieving a fait accompli and it does that by saying “send the child home first, then make a long term plan”.
The Court of Appeal didn’t think that you could easily translate the swift return set up in Hague cases to internal relocation cases, because of the difficulties defining where a child was habitually resident and where they should be returned to. Was it the South East or Kent, or a particular town in Kent, or a particular part of a particular town in Kent?
The father said there should be a general principle that a child should be summarily returned to the place he had been taken from – unless there were good welfare reasons why that should not happen. The Court of Appeal said there was no such general principle. Instead, said the Court of Appeal, “Everything depends upon the individual circumstances of the case” and the court must treat the child’s welfare as the most important (paramount) issue. The welfare checklist has built into it everything that the court needs to consider. Sometimes it will be right to send the child back whilst things are sorted out, but in other cases it will be right to leave the child where they are whilst things are sorted out. The Court of Appeal also point out that not all abduction cases fall under the Hague Convention and that this “welfare as paramount” approach is just the same as the approach in international abduction cases not dealt with under the Hague Convention. The father’s suggestion that the court should just borrow the approach in Hague cases was firmly rejected.
So, after a lot of legal argument, we are back to the advice that family lawyers so often give : “it all depends”. A parent who finds their child has been taken to Lands End or John O’Groats may make an application to have the child returned immediately to the local area they came from whilst the court makes longer term plans, but whether or not that order is made will depend on the facts of the particular case. There is no automatic expectation that the child should either be sent back home or should be permitted to remain in the new location.