A and B (Rescission of Order Change of Circumstances): Children have return order rescinded

Image: Public Domain, via Piqsels (yes, another flag!)

This is just
a quick note to highlight an unusual case of children applying, successfully in this instance, to rescind a Family Court order made in proceedings between their parents: A and B (Rescission of Order Change of Circumstances).

The order in question was for the children's summary return to this country from Spain, where they were living with their father.

The (extremely abridged) facts were as follows:

1. The father is Belgian, and the mother is Spanish. They were married in 2002 and have two children, now aged 17 and 12.

2.  The family lived in Spain until 2010 when they all moved to live in England. In 2015, the parents separated, and the father returned to Spain. The children remained with the mother, in England.

3. In 2019, the children visited Spain for a holiday, accompanied by their mother. During the visit the mother and the older child had a serious argument, and the child fled to her father's home. The child subsequently filed a complaint with the police against her mother, alleging mistreatment. She was eventually placed in the care of her father, where she has remained.

4. The younger child remained living with his mother in London, but in 2020 a very similar set of circumstances took place in relation to him. On a visit to Spain he telephoned his father and alleged that the mother had assaulted him. Again, the police were involved, and he was placed in his father's care, where he has remained.

5. The mother issued an application in London, seeking the return of both children to this country. The court made a return order in December 2020. The father applied for permission to appeal, but this was refused.

6. Some months later the children applied to rescind the return order, arguing that there had been a change in circumstances, in that whilst the judge had known that they were resistant to returning to England, those views had hardened since December 2020, and that given the older child's age (17y 7m), it would be unconscionable to uphold the order for her return to this country (which raised the prospect, not considered by the judge in December 2020, of the children being separated).

The application was heard by Mr Justice Cobb. I do not need to go into the detail of his judgment here - suffice to say that, whilst he was not able to conclude that the views of the children had hardened, he was satisfied that in the nine months since the hearing the dynamic of the case had shifted materially to expose the real prospect of sibling separation if the order was upheld. The older child's opposition to returning to England made the prospect of enforcement of the order unachievable.

He found that the children were "close if not 'inseparable'". The prospect of separating them was not foreseen by the judge in December 2020, and therefore the order should be rescinded. It was also requested that the proceedings be transferred to Spain.