Girl, 6, makes legal history…
Judge in child abduction case allows her to choose whether to live with her mummy or daddy
By Andy Dolan Daily Mail 15th April 2010
In a landmark case, a six-year-old girl caught in a tug-of-love battle has been allowed to choose which parent she will live with.
She became the youngest child to have her wishes influence the courts in an international child abduction case.
A judge heard how she had been left with a ‘visceral’ fear of being sent back to live with her father in Ireland.
The girl and her two brothers, aged three and eight, were brought to the UK by their English-born mother last summer.
They are now free to remain with her in this country after the Appeal Court yesterday upheld an earlier ruling by a family court judge to refuse the father’s application for them to be sent back to Ireland.
Giving her decision last month, Mrs Justice Black said the six-year-old and her older brother had ‘attained an age and level of maturity’ to have their wishes taken into account. She said it would be ‘intolerable’ for their younger brother to be separated from them.
The court heard the three siblings had spent all their lives in Ireland, their father’s homeland, before their mother ‘unlawfully removed’ them last summer. Their father’s counsel, Edward Devereux, said it was a ‘ clandestine and well-planned’ operation carried out while the father was at work. He asked to have the children ‘summarily returned’ to Ireland under the Hague Convention, the international treaty which tackles-child abduction in family cases.
Mrs Justice Black refused to order their return after hearing the strength of the two older children’s objections to the move. A social worker who interviewed the pair said that, when she told them they might be sent back to Ireland, the boy ‘became very fidgety’ and his little sister started to cry. The youngsters said that, if they had to return to Ireland, they wanted to live in a secret location as far away from their father as possible, the court heard. In her ruling, Mrs Justice Black said the children’s objections were rooted ‘in their own experiences of family life and their fear of their father’.
She added that there was nothing to suggest that they had been influenced or put under pressure by their mother. At the Appeal Court, Mr Devereux argued that the judge’s ruling undermined the whole basis of the Hague Convention, which requires that the future of children in such cases should be decided by the courts of the country from which they have been unlawfully abducted. Describing the case as ‘unique’, the barrister said that six ‘is the youngest age in the reported jurisprudence at which a child has been found to have attained an age and degree of maturity at which it is appropriate to take account of her views’.
Mrs Justice Black’s ‘radical’ ruling, he said, would have ‘a far-reaching impact’ on child abduction cases. However, after a two-hour hearing, Lord Justice Wilson and Lord Justice Sedley refused to grant the father permission to appeal, with the result that the children will now get their wish and stay with their mother in England. Recognising the potentially widespread importance of the case, Lord Justice Sedley said the court would give the reasons for its decision at a later date.
Last month’s Court of Appeal hearing attracted much attention in the national press because at first instance Black J had taken account of the views of two of the three children involved. The younger of them was five years old at the time of her interview by a Cafcass officer. Edward Devereux, representing the father, told the Court of Appeal that Mrs Justice Black’s decision to consult the girl had been “radical” and “unique”. He said that five was “the youngest age in the reported jurisprudence at which a child has been found to have attained an age and degree of maturity at which it is appropriate to take account of her views.”
The father’s application for permission to appeal was refused.
Delivering the main judgment of the Court, Wilson LJ cited the observation of Baroness Hale in In Re D (A Child) (Abduction: Rights of Custody)  UKHL 51, that “children should be heard far more frequently in Hague Convention cases than has been the practice hitherto”. He shared the concern that “the lowering of the age at which a child’s objections may be taken into account might gradually erode the high level of achievement of the Convention’s objective, namely – in the vast majority of cases – to secure a swift restoration of children to the states from which they have been abducted.” However, he added: “A considerable safeguard against such erosion is to be found in the well-recognised expectation that in the discretionary exercise the objections of an older child will deserve greater weight than those of a younger child.”