Potential abduction risk leads judge to deny father holidays abroad with his children
23 June 2016
What if you are worried your former partner will abduct your children, on the pretext of taking them on holiday overseas? A recent case addressed that question in relation to a family with a British mother and Algerian father.
In this case, heard in the High Court Family Division, the father sought leave to take his children on short trips abroad and for them to be circumcised, in line with his Muslim faith, against the wishes of their mother.
The father, a devout Muslim, was born in Algeria where his parents still lived. He had been living in England for 13 years, having arrived from Algiers via Marseille. The English mother had grown up in Devon before moving to London where the parents met and began to cohabit. After the children were born, the relationship deteriorated with the mother describing the father's behaviour towards her as increasingly controlling and violent. Finally, she fled from the north London flat they shared and moved to the West Country with the two boys.
Litigation between the parents had begun in 2012, when the mother issued wardship proceedings in the Family Division of the High Court and orders were made preventing the father from attempting to remove the children from her care. Following a five-day fact-finding hearing, the judge concluded that the father posed a serious risk to the children, having threatened repeatedly to abduct them to Algeria. Initially the father was allowed supervised contact only with the children. Over time that changed after the father relocated to the area in North Devon where the mother and children lived.
By the time of the current proceedings, the mother was in a settled relationship with another partner, with whom she now had a two-year-old daughter. The father of the two boys was having staying contact on alternate weekends from Friday to Monday and after school on the other Fridays. The father was seeking to increase his time with the children (now aged 6 and 4) and wanted to be able to travel abroad with the children. He also sought permission for the boys to be circumcised, in accordance with Islamic tradition.
Judgement
Mrs Justice Roberts gave judgement following a four-day hearing. On contact, she accepted the boys' guardian's recommendations that the children were now ready for an extra midweek overnight stay with their father on a fortnightly basis.
On the question of temporary leave to remove from the UK, she held that given the risk of abduction, or more particularly of the children being retained by their father in Algeria, after an agreed holiday, she was unable to say she was positively satisfied that the advantages to the children of visiting the country outweighed the risks to their welfare and because she was in doubt, she must err on the side of caution. Her view was informed by expert evidence that there were no legal provisions for orders made in England and Wales to be enforced in Algeria (which is not a party to the Hague Convention on Child Abduction) and that the father would be considered by the Algerian courts as having the right to determine where the boys should reside.
She was equally not persuaded that it was in the children's best interests to allow travel to other European countries (such as France) that are party to the Hague Convention, in case these were used as a springboard for the removal of the children to Algeria. She therefore refused to make the orders sought by the father in relation to any international travel with the boys.
On circumcision, the judge held that the 'finely balanced decision' about such a once and for all irreversible procedure should be deferred until the boys were old enough to decide for themselves. There was no certainty that the boys would necessarily want to continue their adherence to the Muslim faith and it would be a serious matter to impose such a procedure on them when their primary carer was strenuously opposed to it.
The judge concluded by saying the time had come for the litigation between these parents to end and for them to find the means to communicate effectively between themselves, so that they could shape their children's future together, rather than having decisions about their children decided by the court.
Re: L and B (Children) (Specific Issues: Temporary Leave to Remove from the Jurisdiction; Circumcision) [2016] EWHC 849 (Fam) Mrs Justice Roberts
Maeve O'Higgins Family Law Partner, Burlingtons Legal |
Email: maeve.ohiggins@burlingtonslegal.com, Tel: +44 (0) 207 529 5420
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