CHILD ABDUCTION: THE IMPORTANCE OF CONSENT

Perhaps, the first question you ask a client, to ascertain whether a removal is or isn’t wrongful, is whether such removal was consensual, by that we mean (in broad terms) by implied or expressed consent. In most cases, on taking evidence from the client, this is clear cut and one can be advised clearly on the redress available to them. However, from time to time this important issue can give rise to grey areas, the outcome of which can underpin the outcome of inevitable litigation.

The point is highlighted in the recent case of N v A (Abduction from Pakistan) [2013] EWHC 3954 (Fam). The case also cements the principle that, once a return order has been made, the jurisdiction to decide the outcome of the case lies with the country in which the child has been declared habitually resident.

The Case

The case concerned a girl aged just 3 years old. Her Mother, who lived in Pakistan and was a Pakistani National, applied for the return of her daughter. The Father, who was a British Citizen (and carrier of a Pakistani I.D Card), had taken the child to the UK in June 2012.

On the Father’s case, he said the removal was one step in a mutual plan to relocate to the UK. He said that it was agreed with the Mother that she would follow Father and daughter once the necessary visa had been obtained.  In support of his case he pointed to the joint application made by the parents in January 2012 to the High Commission in Islamabad for a British Passport for the child.

The Mother denied the plan. She rejected the notion that she had given consent and asserted that the removal was wrongful. It is against the background of the case from which the Mother’s immediate case finds credence.

The Background

The parents were first cousins and married in 2000. Not unusually following marriage Father returned to the UK pending Mother’s approval for a British visa. However, somewhat unusually is the passage of time to Mother’s visa being refused – some 5 years later in September 2005. Two years later Father chose to be reunited with Mother in Pakistan and settled there, leading to the birth of their daughter in July 2009. In November 2010, Father entered into a second marriage without telling his family or the Mother. The Mother was said to be devastated, however, following meetings between elders the pair reconciled in September 2011.

The Decision

Following the removal of the child in June 2012, the Mother made an application in the High Court for the summary return of her daughter to Pakistan. There was some delay in the application being made. It came before the Court in September 2012, after an unsuccessful application in a local court in Pakistan for the recovery of the child.

On the 17^th September 2012, Justice Bodey gave provisional declarations that the child was habitually resident in Pakistan and that it was a wrongful removal.

The case went before Mrs Justice Hogg on the 21^st December 2012. A robust judgment was handed down. In paragraph 23 of her judgment Mrs Justice Hogg arrived at the following conclusion:

“I have come to a very clear view. The view is that [Father] has lied to me about what happened. I do not accept that the mother gave her consent in any form at all for him to take F to this country...I think he has lied to me. It is simple as that. I think he took this child to England because he wanted to. He wanted to come back here and did not want to be parted from his child. It is as simple as that. I am going to make the declaration that the child was removed without the consent of the mother, that the child is habitually resident in Pakistan.” (emphasis added)

As with most cases of this nature, the role of the court is two-fold. Firstly to establish whether consent has or hasn’t been given, and, secondly, should the child be returned. The Learned Judge heard evidence that:

“....although the father played a role in her care and tried to tell me he was a primary carer the reality was that ....the primary carer being the everyday carer was the mother, and no-one has criticised her as a mother.”

Importantly Mrs Justice Hogg went on to highlight the widely accepted principle that it is not for the court in this country to interfere or undermine the court in which the child lives. The Learned Judge stated:

“It is well known that the courts of a child's habitual residence are the best courts to consider the issues of welfare for a child. There is no reason if he wanted to make an application to the Pakistani courts that the father could not. He is fully entitled to be heard. He can go there...This child was born and bred in Pakistan and there she should return and, for the time being, until the Pakistani court say otherwise, reside with her mother.”

It was ordered that the child should be returned immediately so that she could be reunited with her Mother, who had (to the immense dissapointment to Mrs Justice Hogg) not been permitted by the Home Office to enter the country to engage in the litigation.

Conclusion

This case underlines the clear and robust views adopted by the Court in this jurisdiction, where the evidence finds that a removal to this country has been carried out without the consent of all those with parental responsibility (typically the parents) and is thus wrongful. Seeking proper and good legal advice at the outset is clearly necessary in all such cases where the actions, often taken in haste, can have such profound consequences.

Together with our family team at Charles & Co, I advise and repesent on all aspects of child abduction matters. Please feel free to visit our website at www.charlesandco.net or email me at mh@charlesandco.net if you would like to comment on this or any of my other posts.