Child Abduction Conference, 9 February 2018

I attended the 1 King’s Bench Walk annual child abduction conference on Friday. I have attended every year since 2014 and the conference has been running since 2003 so this was the 15th year. It was again chaired by Richard Harrison, QC. I will single out just two of the talks.

There was an interesting opening talk by Mr Justice Francis. He was appointed to the High Court bench relatively recently and was the judge in the distressing Charlie Gard case which made news around the world in 2017. He spoke about that and about international cases involving children. He made the point that better liaison between judges of different countries would help to improve the quality of judicial decision making in countries were that was an issue as well as helping to better manage individual cases being litigated in two countries. He was also critical of countries which assigned low level family judges to abduction cases given the importance of the same: in the UK all abduction cases are dealt with in the High Court.

As in previous years, a talk was given by a representative of the charity Reunite. This was the only part of the day that Japan was mentioned, twice. In the course of the presentation, the speaker revealed that Reunite is currently working with the Japanese authorities to promote co-mediation. At the end of the presentation the chairman asked the speaker whether there were any “particularly challenging” Hague countries in terms of the recovery of children. The speaker replied, as I knew she would, by saying simply “Japan”. She it appeared did not seem to see the need to expand on this answer but when asked to do so by the chairman she went on to explain that “enforcement is not pushed” in Japan because it is “not engrained in its legal culture.” She also said that she did not see this changing any time soon.

This was just intended as a short write-up; anyone wanting to know more is welcome to get on contact.


Judge writes personal letter to teen after High Court battle


Judge writes personal letter to teen after High Court battleAn envelopeImage copyright

A judge has written a personal letter to a 14-year-old boy explaining why he has rejected his request to move with his father to Scandinavia.

Mr Justice Jackson said he felt the teenager had brought the case to the High Court “as a way of showing your dad how much you love him”.

He told the boy he was “doing well in life” and did not believe that the move abroad would work.

He said: “I am confident that it is the right order for you in the long run.”

Mr Justice Jackson, who is based in the Family Division of the High Court in London, wrote the letter to the teenager which laid down his ruling after a hearing in July.

Sam, not his real name, had applied for permission to live with his father in a Scandinavian country, which his mother and step-father opposed.

The application was later taken over by his dad.

‘Duty by your dad’

In the letter, the judge told the boy he believed “that your feelings are that you love everyone in your family very much, just as they love you”.

However, he noted that Sam’s parents had “very different personalities” and the fact they found it hard to agree was “stressful for you”.

In the letter, the judge said he found Sam’s dad to be someone who was “troubled” and had a “lot of influence over you”.

“All fathers influence their sons, but your father goes a lot further than that. I’m quite clear that if he was happy with the present arrangements, you probably would be too. Because he isn’t, you aren’t.”

He questioned whether the idea for the proceedings came from Sam or his dad and said he believed the teenager had “brought the proceedings mainly as a way of showing your dad how much you love him”.

‘Lost sight’

He told the teenager: “Also, I may be wrong, but when you gave your evidence I didn’t get the feeling that you actually see your future in Scandinavia at all.

“Instead, what I saw was you doing your duty by your dad while trying not to be too unfair to your mum. But you still felt you had to boost your dad wherever you could.

“That’s how subtle and not-so-subtle pressure works. So I respect your views, but I don’t take them at face value because I think they are significantly formed by your loyalty to your father.”

The judge said Sam’s dad had a “manipulative side” and has “in some ways lost sight of what was best” for his son.

He told the boy he had no confidence that a move to Scandinavia would work and hoped his dad would decide to stay in England “for your sake”.

‘Justice was done’

The judge said the evidence showed Sam was doing well in life in England and that he “should make the most of the many opportunities that life here has to offer you”.

He went on: “If, when you finish your A-levels, you want to move to Scandinavia, you will be 18 and an adult – it will be up to you.”

Mr Justice Jackson dismissed his dad’s application to take Sam to live in Scandinavia and for Sam to apply for citizenship there.

He ruled that Sam would have contact with his dad on alternate weekends and any arrangement after he moved to Scandinavia alone would have to be agreed between both parents.

In the letter, he added: “Whatever each of your parents might think about it, I hope they have the dignity not to impose their views on you, so that you can work things out for yourself.”

The judge finished by saying he and Sam’s dad had enjoyed finding out they loved the film My Cousin Vinny – but for different reasons.

“He mentioned it as an example of a miscarriage of justice, while I remember it for the best courtroom scenes in any film, and the fact that justice was done in the end.”

Source:  “Judge writes personal letter to teen after High Court battle”, BBC News, 27 July 2017

Post on the 2017 Child Abduction Conference (10 February)

As previously posted here, I attended the 1 King’s Bench Walk International Child Abduction Conference in London on 10 February as I did in 2015 and 2016.  As in previous years, it was an all-day conference and I shall not attempt to summarise everything.

For me, the most notable points were these:

  • Following “Brexit” it is not clear what will become of the “Brussels II” Regulation which regulates family law issues between EU states, including questions of international parental child abduction (see also Blogroll to the right for a link to the entire text). It may well be replicated in domestic law but, as I said, it is not yet clear whether and how this will occur.
  • Mr Justice MacDonald, a High Court judge, gave an address in regard to case management issues in the context of abduction cases.
  • The annual update given by the charity Reunite International revealed that their statistics show that there have been 10% increases in parental abductions in “most years”; whilst worrying, that is not altogether surprising given the increased prevalence of international marriages. They have also set up successful bi-monthly meetings for left behind parents in the UK and now publish their prevention guides, available on the website, in languages other than English.  The speaker also drew attention to a shocking incident whereby the Metropolitan Police refused to take action in regard to a removal of a child where that removal was reported before it happened.  That is now the subject of a civil claim but shows that ignorance as regards the issue of parental child abduction extends to arms of the state whose role should be to help prevent abductions taking place at all, where there is advance knowledge that an abduction may take place.  Reunite is also undertaking a great many more mediations now than before, an encouraging sign as the organisation has a good track record in that regard.
  • There was also a separate talk dedicated to mediation and arbitration. On this the notable development over the last year has been the introduction of the Child Arbitration Scheme in July 2016.

This post is dedicated to my son who turns 8 ¼ today.

Madonna has ‘basically accepted she’s not getting Rocco back’

Madonna has ‘basically accepted she’s not getting Rocco back’

Madonna is growing to realise that she cannot force her teenage son Rocco to live with her, friends say


Madonna with son Rocco

Madonna with son Rocco  Photo: Getty

Madonna has reluctantly accepted that she is losing the battle to force her 15-year-old son Rocco to remain with her, it has been reported – despite the singer doing everything in her power to bring the teenager back.

The 57-year-old divorced Rocco’s father, British film director Guy Ritchie, in 2009 and moved back to the United States.

Madonna and Mr Ritchie had adopted a child from Malawi, David Banda, together in 2006 and under the terms of their divorce – filed in New York – their two children would live with her in the US.

Mr Ritchie at the High Court in London on Thursday

But in December, while Madonna and her family were in Europe as part of her Rebel Heart world tour, Rocco decided to stay with his father and his new wife, Jacqui Ainsley, in London.


Madonna then went to court to try and bring him back, even seeking to use The Hague Convention on child abduction to force his return.

On Sunday the New York Post quoted friends as saying that she had resigned herself to losing her son.

“She’s basically accepted she’s not getting Rocco back,” said a friend. “But she’s holding out to get him back for one weekend per month.”

Madonna and Guy Ritchie have taken their custody battle to court   Photo: Getty

On stage in Auckland on Friday night she burst into tears as she said: “There is no love stronger than a mother for her son,” dedicating a performance of La Vie en Rose to him.

Rocco was seen the next day cycling through London with his father.

Earlier in the week both Madonna and Mr Ritchie held a video conference in New York with the judge hearing their custody battle – who reprimanded the pair for failing to reach an agreement, without dragging the matter through the courts in the full blaze of publicity.

A day later the case was heard in London, with Mr Ritchie fighting to try and have the case heard under UK law.

Mr Ritchie with son Rocco

The case will return to the New York courts later this month, with Madonna asked to present her list of demands. They are believed to include the condition that Mr Ritchie set aside time in the week when she and her other children – Lourdes, 19, and nine-year-old Mercy – can speak to Rocco. The Michigan-born singer wants confirmation of her right to have a say in her son’s education, and reassurance about her son’s whereabouts.

She wants an adult to be informed of Rocco’s whereabouts when he goes out to parties, The Mail on Sunday reported, and a stipulation that Mr Ritchie provides him with “young, hip” bodyguards who can discreetly guarantee his security.

Madonna is also determined that the case continue to be heard in New York – where parents retain greater controls over their children until they are 18 – rather than in the UK where more freedoms are granted to 16-year-olds.

Source:  “Madonna has ‘basically accepted she’s not getting Rocco back'”, The Telegraph, 6 March 2016

Remarks:  The full facts are not very clear and nor frankly should they be as this should be a private matter but, despite being someone who has no interest at all in celebrities, I must say that this can only be incredibly difficult for Rocco’s mother; despite all the resources available to her she finds herself having to give up.  Rocco, though, is now of an age at which, for better or worse, he can speak with his feet – regardless of what the courts have to say about it.  I hope that parents and son can, as I believe the judge suggested, come to an out of court arrangement as to the future.  RY.

Summer 2015 case law round up

There have been two child abduction cases of note in the higher courts over the summer, both concerned, in part at least, with objections by children to the making of return orders under the Hague Convention:

High Court

My print out of the High Court (Family Division) judgment in Re F (Abduction: Acquiescence: Child’s Objection) [2015] EWHC 2045 (Fam) runs to 35 pages. I will try and explain it in a much more concise manner below.

The case was about 4 children aged between 13 and 9. Their parents were separated. Up until December 2014 the children lived with their mother in Australia. With her agreement, the children spent their Australian summer holidays in the UK with their father. They were due to return to Australia on 23 January 2015. They did not; the father pre-empting this by, ahead of this date, informing the mother that they could not be returning to Australia on the basis that they wishes to remain.

It was this, the suggestion that the children did not wish to return to Australia, that was central to the determination of this case as the father accepted that his retention of the children in the UK was wrongful, as defined by the Hague Convention.

Given all of this, the issue for the Court was whether the mother acquiesced to the retention of the children in the UK or whether, failing that, if the children objected in a legal sense to their return to Australia, whether the Court should, in the exercise of its discretion, go behind the raison d’etre of the Hague Convention and not order a return of the children because of that.

The Court quickly rejected the suggestion that the mother had acquiesced in the wrongful retention of the children: see paragraph 99 of the judgment. The reasoning for this, set out at paragraphs 87 to 98 draws heavily on the “power imbalance” between the parents arising out of the father’s prior financial support to the mother and children in Australia. Because the father controlled the purse strings, the Court decided that the mother had no alternative to return to the UK but that her actions in doing so could not be regarded as retrospective consent to the wrongful retention.

Recognizing that the case would turn on the issue of whether the children’s “objection” to return amounted to an objection as a matter of law, the judge met with the children prior to giving judgment: see the judgment at paragraphs 60 to 65. See also paragraphs 77 to 81 for the circumstances in which this may occur.

In terms of the Court’s approach to the objections raised by each child to their return to Australia between paragraphs 108 and 115, the Court concluded that none of the children objected, in a legal sense, to returning to Australia; their preference may have been to remain in the UK for the reasons given by them in the evidence before the Court but this did not amount to an objection. Owing to this finding, the Court did not have to decide whether to exercise the discretion it had as to whether, if valid objections had been shown (which they had not), the return of the children should not take place – despite the fact that the father accepted that a wrongful retention had occurred.

In concluding at paragraph 124, the Court found that the father ought to have adopted the “honourable approach” to making an application to the Australian family court to relocate the children to the UK. He did not and in consequence the Court ordered the summary return of all of the children to Australia.

Court of Appeal

Again, there has been only one case of note in the Court of Appeal this summer, that of Re K (1980 Hague Convention) (Lithuania) [2015] EWCA Civ 720. The case was concerned with Lithuanian parents. The mother was appealing against an initial decision made by a High Court judge to require her 11-year old daughter to return to Lithuania under the Hague Convention. The mother accepted that she had wrongfully retained the child in the UK but argued that a return should not occur because the child objected and because there was a grave risk of physical/psychological harm or that the child, if returned, would be placed in an intolerable situation. The father, who resisted return, accepted that the child objected to returning to Lithuania but that, in the exercise of its discretion in this situation, the judge still ought to have ordered return – as the judge did in the High Court. The High Court judge rejected the argument that the child would be at risk of harm or would be placed in an intolerable situation if returned (paragraph 36 of judgment) and concluded that the child’s objection to return was not “determinative” (paragraph 35).

The Court of Appeal upheld the High Court’s decision to order the return of the child, rejecting all challenges brought against the original decision, noting that the judge, Hogg J, had “…enormous experience of Hague abduction cases…” (paragraph 39). The Court of Appeal rejected any suggestion that the High Court judge had made up her mind prematurely or approached the evidence selectively (paragraph 42). The Court concluded that the decision made was one that was reasonably open to the original judge (paragraph 45) and that her concerns about the evidence of the CAFCASS officer – the only person to give evidence at the original trial – were open to her also (paragraph 46). Perhaps the point of more general interest is the approach adopted to the suggestion that the child, in objecting to return, was influenced in that regard by the mother. At paragraph 49 the Court of Appeal, remarking on the approach of the initial judge in this regard, said:

It is certainly correct to say that the question of influence weighed heavily in the judge’s mind. She was bound to consider it because it was relevant to the weight that should be put on [the child]’s views, but it was far from being the only thing she considered. Furthermore, the fact that [the child] had been influenced certainly did not lead her to leave [the child’s] views completely out of account. Instead, she weighed them up critically to see where they took her in deciding whether to order a return.

The Court concluded that the original judge’s conclusion that the child should return to Lithuania despite objecting to this course of action was one that was “undoubtedly” open to the original judge (paragraph 51).