Taking Children Abroad: Human Rights, Welfare and the Courts

Extract

One of the more drastic results of marital breakdown can occur where a mother decides to leave the country permanently and relocate with a child. Such cases can pose an acute dilemma where, as in Payne v. Payne [2001] 1 F.L.R. 1052, the father has enjoyed substantial contact with the child which is bound to be severely curtailed (if not entirely destroyed) by the mother’s relocation on the other side of the world. Here the mother, a New Zealander, had been ordered by a New Zealand court to return the child to England, following her “wrongful retention” there, under the Hague Convention which governs international child abduction. In the present proceedings she sought leave to return home to her original family with her four-year-old daughter. The father had substantial staying contact, which was sufficiently extensive that it might almost be termed “time-sharing”, and he countered with an application for a residence order. It was not in dispute that the child had an exceptionally good relationship with the father and with the paternal relatives in Newmarket. The mother, who by this time had grown to loathe her home in London, was adamant that she could only provide the child with a happy and secure upbringing if allowed to return to New Zealand. The father unsuccessfully opposed her application in the Cambridge County Court but appealed on the basis that the settled principle applied by the courts was in breach of the European Convention on Human Rights and in conflict with the Children Act 1989. The essence of the argument was that the Convention enshrined a right of contact between parent and child as an aspect of respect for family life under Article 8 and that the Children Act also required much greater significance to be attached to the preservation of such contact.