In cases of cross-border child abduction, it is hardly surprising that the clear position under international law is that children should be swiftly returned to their country of origin. However, as a High Court case showed, there are exceptions to the rule and the wishes and feelings of children themselves can be decisive.
The case concerned a nine-year-old girl who had been abducted from Poland by her mother and brought to the UK. The mother had planned the move for some weeks but did not inform the girl’s father, instead deliberately seeking to mislead him. The father’s response was to launch proceedings in England under the Child Abduction and Custody Act 1985, seeking the girl’s return to Poland.
Ruling on the matter, the Court noted that it was undisputed that the father had rights of custody in respect of the girl and that she was habitually resident in Poland prior to her abduction. It was also agreed that the girl’s removal was wrongful and that the Court would ordinarily be required to order her return forthwith to Poland.
However, the Court expressed deep concern about threats made by the father to the mother and child following the latter’s abduction. The menacing tone of mobile phone messages and recorded telephone calls indicated that he was bent on revenge and intent on tracking the mother down and destroying her.
The girl, who was sufficiently mature to make her wishes and feelings known, had expressed clear and authentic objections to a return to Poland. Happy and settled in the UK, she perceived that the father posed a serious threat to her and her mother and genuinely feared being brought into close contact with him. The mother was also extremely fearful of retribution at his hands.
In dismissing the father’s application, the Court found that there was a grave risk that compelling the girl’s return to Poland would expose her to physical or psychological harm or otherwise place her in an intolerable situation. Despite the father’s strongly held views, the Court considered it likely that a return order would be counterproductive to the resumption of his relationship with his daughter.