A sister and her brother have successfully managed to revoke an order made in an English family court forcing them to return to the UK to live with their mother.

The judgment for this case features several interesting legal principles which enabled the order to be revoked. However it is of greater importance for the weight it placed on the children’s wishes and feelings in an exceptional case which highlights the balance that needs to be struck between damage caused by forceful removal and any damage caused by parental absence.

The family law case involved a Spanish mother, Belgian father and their children who lived in the UK while the parents were married. Upon the parents separating, the mother remained in the UK and the father left for Spain. Divorce proceedings were initiated in England.

During the divorce proceedings, the children were ordered to live with their mother during a hearing in which the father was not present. The order also set out that the children would spend four weeks in each summer holiday with their father.

The following is an extract from the judgment, handed down by Justice Cobb:

“Within a short time of that order, the children visited their father in Spain for a summer holiday. At the conclusion of the visit, the children did not return to the mother or this jurisdiction as planned. The mother issued proceedings under the 1980 Hague Convention in Spain, and an order for their return was made in March 2018. The children finally returned to England in September 2018. Financial proceedings between the parents, consequent upon the divorce, had in the meantime concluded in this country in June 2018.

In 2019, the children visited Spain again for a holiday, this time initially accompanied by their mother, who was visiting the children’s maternal grandmother (“MGM”). During this visit the mother and A had a serious argument; A fled to her father’s home. On her return to her mother and the MGM, further disagreement followed, and A filed a complaint with the police against her mother, alleging mistreatment. The police complaint did not in fact lead to a prosecution, but A was removed from her mother’s care and for three months was placed in institutional care in Spain; there is a dispute between the parties now as to whether either parent could have given permission to the other to make arrangements to care for A in the short-term. Pursuant to an order of the Valencia Court in November 2019, A was placed in the temporary care of her father, where she has remained. The order was “conditional on the girl being on the one hand schooled in Madrid in a centre that follows the British educational system” and secondly, conditional upon the father filing a “request for modification of measures” (custody).

An order for ‘contact’ between A and her mother was further made. A was placed in school in Madrid. B remained with his mother in London.

The Valencia Court had recorded the “very difficult relationship” between A and her mother; in her ruling, the Magistrate-Judge of the First Instance Court added:

“[A], who will be 16 years old in three months, showed a radical aversion to living with her [mother] again, and although this rejection is justified in a way, it is true that the imposition by force of coexistence with the mother at a time when the confrontation with her is very acute, it could be very damaging for a young woman who has already shown her indomitable character, even betting on risky behaviours” (sic.). (Emphasis by underlining added).”

The order needed to be revoked to ensure that the siblings, who were very close, were not separated.

The mother makes a stoic statement during the proceedings, which is added into the judgment. This is what she says:

“I would like my words and my will to be noted in the order … the reaction of my children upon leaving the court has been very revealing … I have decided that we cannot tighten the rope any more …… with this I do not renounce or abandon my two children ……… I do not renounce my rights but to exercise them for the sake of the minors… I prefer to wait for them to mature and come alone ……… I do not wish to make them unhappy or subject them to further investigations or trials to reach the same conclusion …… I give in to the current desire of my children ……… I do not ask for visits, I will wait for them to ask to come and see me when they are ready …… I can confront my ex-husband but not to my children before the Courts …… I can stand to my ex-husband but not to my children before the Courts …… I hope that my will be taken it into account.”.

There is a very good summary on Lexis Nexis for lawyers who can access the service, and the judgment itself can be accessed on BAILII by anyone for free. It is worth reading the judgment in full, both for the legal mechanisms that made the revocation of the order possible in this case but also for the many different and important twists and turns in this case.