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/ 16 Feb 2015

Children of now deceased mother to be returned to father in Australia following High Court ruling

Two children who were brought by their mother from Australia to the UK will be returned to their father in Australia following a ruling of Mr Justice Roderic Wood in the High Court last week. The children’s mother had taken them on a ‘holiday’ to the UK whilst she was undergoing treatment for cancer but had later written into her Will that ‘under no circumstances’ should the children be returned to Australia, where their father – her ex-husband – remained and that the children should have ‘little or nothing to do with him’.

The mother was diagnosed with cancer two years ago and with her ex-husband’s permission had travelled with the children to the UK for treatment. The father anticipated this to be a ‘holiday’ rather than a permanent move for the children, an 8 year old girl and a 7 year old boy, who were habitually resident in Australia, having been born and raised there. Once in England, the mother took legal advice and drew up the Will in which she specified the children should be brought up by relatives in England instead of their father in Australia.

Since the father had agreed only to the children travelling to the UK on a temporary basis, he made an application to the High Court under the Hague Convention on the Civil Aspects of International Child Abduction for the return of his children on the basis that his ex-wife had ‘wrongfully retained’ them in the UK. The High Court agreed; ruling in favour of the father and thus ordered the children’s immediate return to Australia.

International child abduction may occur where one parent removes a child from the country in which they are habitually resident to another country without the knowledge or consent of the other parent. A child may be wrongfully removed or, as in the above case, wrongfully retained where they are not returned as agreed from a holiday. In order to bring such an application, the left behind parent must prove to the court that he or she has a ‘right of custody’ which has been breached and that the children were habitually resident in the country they were removed from. The respondent parent may present certain defences to the court including the settlement of the children in the country to which they have been removed; that the left behind parent consented or acquiesced to the move; that the children object to returning to the country they were removed from; or that should the children be returned to that country, there is a grave risk they would be exposed to harm.

In the case above, Mr Justice Roderic Wood did not find the children were settled in the UK, nor did they object to returning to Australia. The mother had misled the father regarding her intentions to permanently remove the children and accordingly the father had not consented to nor subsequently acquiesced in the retention. As such, it was ordered the children be returned to Australia in accordance with the Hague Convention.

International child abduction by a parent is a niche area of family law in which senior Hanne & Co family solicitor James Dunn specialises. James is a Resolution Accredited Specialist in this area and is frequently instructed by the International Child Abduction and Contact Unit. If you are concerned your child has been or is at risk of abduction or proceedings have started against you, we can help.

See: http://www.theguardian.com/australia-news/2015/feb/11/children-uk-returned-australia-judge

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