A radical change to the landscape of international abduction cases?
19th April 2010 by: David Lillywhite
A court has decided that a five year old girl who harboured major objections against living with her father was mature enough to decide her future living arrangements. The girl, who cannot be named for legal reasons, was one of three children at the centre of the dispute after the mother brought them back to Britain without obtaining their father’s consent last year.
The children were originally brought back to the UK by the mother while the father was at work. He launched a case in the High Court with a view to his children being returned to him. Mrs Justice Black then took the decision to take into account the opinions that the children had given in their interviews with social workers, saying that the girl and her brothers had “attained an age and level of maturity” to have their views taken into account and they would therefore stay with their mother in the UK.
It means the girl is the youngest child to have her wishes influence the courts in an international abduction case. The judge’s decision was based on the girl’s “visceral” fear of being sent back to live with her father in Ireland.
In the judgement, Mrs Justice Black noted that the children’s objections to living with their father were based “on their own experiences of family life and their fear of their father”. Edward Devereux, the barrister representing the father, told the Court of Appeal that the courts' decision to consult the girl had been “radical”, noting that the decision may change the landscape of international abduction cases.
The Court of Appeal refused the father’s right to appeal and said that the details of this landmark case would be made available at a later date.
The decision in this case echoes the judgement in the recent case of Re W (Children). In a unanimous decision, five Supreme Court law lords removed the presumption against a child giving evidence in family proceedings if the advantage in doing so outweighed the risk of harm to the child.
In the past, ‘particular justification’ has been required for a court to hear live evidence from a child. However, in Re W (Children), the court decided that this position could not be reconciled with the approach of the European Court of Human Rights as it did not balance the child’s right to respect for their private life with that of the Respondent’s right to a fair hearing.
Many clients enquire during their initial consultation with us about the possibility of their children appearing before the judge to explain their wishes to the court should the matter proceed to a formal hearing. These two recent cases should not give parents false hope of a change to the court’s process. In the leading judgement in Re W, Lady Hale noted that in most cases the risk of harm would still outweigh the advantage of the child giving evidence and that an unwilling child “should rarely, if ever, be obliged to give evidence”
The children were originally brought back to the UK by the mother while the father was at work. He launched a case in the High Court with a view to his children being returned to him. Mrs Justice Black then took the decision to take into account the opinions that the children had given in their interviews with social workers, saying that the girl and her brothers had “attained an age and level of maturity” to have their views taken into account and they would therefore stay with their mother in the UK.
It means the girl is the youngest child to have her wishes influence the courts in an international abduction case. The judge’s decision was based on the girl’s “visceral” fear of being sent back to live with her father in Ireland.
In the judgement, Mrs Justice Black noted that the children’s objections to living with their father were based “on their own experiences of family life and their fear of their father”. Edward Devereux, the barrister representing the father, told the Court of Appeal that the courts' decision to consult the girl had been “radical”, noting that the decision may change the landscape of international abduction cases.
The Court of Appeal refused the father’s right to appeal and said that the details of this landmark case would be made available at a later date.
The decision in this case echoes the judgement in the recent case of Re W (Children). In a unanimous decision, five Supreme Court law lords removed the presumption against a child giving evidence in family proceedings if the advantage in doing so outweighed the risk of harm to the child.
In the past, ‘particular justification’ has been required for a court to hear live evidence from a child. However, in Re W (Children), the court decided that this position could not be reconciled with the approach of the European Court of Human Rights as it did not balance the child’s right to respect for their private life with that of the Respondent’s right to a fair hearing.
Many clients enquire during their initial consultation with us about the possibility of their children appearing before the judge to explain their wishes to the court should the matter proceed to a formal hearing. These two recent cases should not give parents false hope of a change to the court’s process. In the leading judgement in Re W, Lady Hale noted that in most cases the risk of harm would still outweigh the advantage of the child giving evidence and that an unwilling child “should rarely, if ever, be obliged to give evidence”
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