Thursday, February 17, 2011

O (Children): Dealing with children who have become settled in a new country

The case O (Children) [2011] EWCA Civ 128 concerned an appeal against an order for the return of children under the Hague Convention.

The Facts: The parents met in the United States, although they originate from Nigeria and are Nigerian citizens. They made their home in the US and the children were born there. In February 2009, the mother went with the children to Nigeria on holiday. Whilst there she decided that she could not continue to live with the father and she told the father, in mid March 2009, that she did not intend to return to the US. She and the children were based in Nigeria from then until July 2010, when they came to England to visit the mother's brother for a holiday. When the father learned of this, he made an application under the Hague Convention. Since that time, the mother and the children have been unable to leave this country, by virtue of orders of the High Court.

The mother raised three "defences" to the father's application, under Article 13(a) of the Hague Convention, Article 13(b) and Article 12, arguing that the proceedings had commenced more than a year from the date of the wrongful retention and that the children had settled in Nigeria. The trial judge rejected the mother's case under Article 13(a) and Article 13(b), but found the mother's argument in reliance on Article 12 established. However, he went on to determine that the children should nonetheless be returned to the US. His reasoning was as follows:
"These are very young children and are of an age where I have no doubt that they are able to adapt more readily than older children who may have established deeper attachments and networks to family, friends and environment. In the circumstances therefore the children should be returned to the USA for the American courts to determine any respective applications of the parties based on welfare principles."

The mother appealed against this determination of the judge.

Held: After reviewing Re M (Abduction: Zimbabwe) [2007] UKHL 55, the leading authority on the exercise of the discretion to order the return of children who have become settled, Lady Justice Black found (at paragraph 26): "that the judge both failed to state the Re M principles and failed to apply them. In the circumstances, I am unable to support his exercise of his discretion as a valid one. It follows that the question of whether the children should be returned to the US remains to be determined."

Lady Justice Black then went through the facts in detail and concluded (at paragraph 49):
"I am persuaded that there are overwhelming reasons to decline to order summary return of these children to the US. ... The children do not view the US as their home, were settled in Nigeria in comfortable circumstances and with appropriate arrangements in place for their welfare before coming here on holiday last summer, and are likely to continue to see Nigeria as their home. ... The Nigerian court has already been seised of the matter at the invitation of the father and it would, in my view, be a significantly more appropriate forum for any future litigation about the children than the American courts."

Accordingly, the appeal was allowed and the father's application seeking the return of the children to the USA was dismissed. The mother was therefore able to return with the children to Nigeria.

Lord Justice Pitchford and Lord Justice Wilson gave consenting judgments.

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