Sunday, 24 February 2013

CHILD ABDUCTION: THE IMPORTANCE OF CONSENT


Perhaps, the first question you ask a client, to ascertain whether a removal is or isn’t wrongful, is whether such removal was consensual, by that we mean (in broad terms) by implied or expressed consent. In most cases, on taking evidence from the client, this is clear cut and one can be advised clearly on the redress available to them. However, from time to time this important issue can give rise to grey areas, the outcome of which can underpin the outcome of inevitable litigation.

The point is highlighted in the recent case of N v A (Abduction from Pakistan) [2013] EWHC 3954 (Fam). The case also cements the principle that, once a return order has been made, the jurisdiction to decide the outcome of the case lies with the country in which the child has been declared habitually resident.

The Case
The case concerned a girl aged just 3 years old. Her Mother, who lived in Pakistan and was a Pakistani National, applied for the return of her daughter. The Father, who was a British Citizen (and carrier of a Pakistani I.D Card), had taken the child to the UK in June 2012.
On the Father’s case, he said the removal was one step in a mutual plan to relocate to the UK. He said that it was agreed with the Mother that she would follow Father and daughter once the necessary visa had been obtained.  In support of his case he pointed to the joint application made by the parents in January 2012 to the High Commission in Islamabad for a British Passport for the child.
The Mother denied the plan. She rejected the notion that she had given consent and asserted that the removal was wrongful. It is against the background of the case from which the Mother’s immediate case finds credence.

The Background
The parents were first cousins and married in 2000. Not unusually following marriage Father returned to the UK pending Mother’s approval for a British visa. However, somewhat unusually is the passage of time to Mother’s visa being refused – some 5 years later in September 2005. Two years later Father chose to be reunited with Mother in Pakistan and settled there, leading to the birth of their daughter in July 2009. In November 2010, Father entered into a second marriage without telling his family or the Mother. The Mother was said to be devastated, however, following meetings between elders the pair reconciled in September 2011.

The Decision
Following the removal of the child in June 2012, the Mother made an application in the High Court for the summary return of her daughter to Pakistan. There was some delay in the application being made. It came before the Court in September 2012, after an unsuccessful application in a local court in Pakistan for the recovery of the child.
On the 17th September 2012, Justice Bodey gave provisional declarations that the child was habitually resident in Pakistan and that it was a wrongful removal.
The case went before Mrs Justice Hogg on the 21st December 2012. A robust judgment was handed down. In paragraph 23 of her judgment Mrs Justice Hogg arrived at the following conclusion: