Is internal relocation an abduction?

Laura Smail and Alexandra Gray acted in the recent reported Court of Appeal Case – Re. R [2016] EWCA Civ 1016. This case was of particular importance as it clarified the law when one parent unilaterally moves with a child within England and Wales.

We acted for the father, who was the appellant. The mother left the family home without notice and relocated to the North East, taking with her their one year old son, H.

Immediately after her departure, we wrote to the mother on behalf of the father to seek her return and suggested court proceedings would be initiated if she was unwilling. The mother then applied to court in the North East without notice for an order that she may remain there. She did not inform the court of the contents of our correspondence. The father then applied for an order that H should be returned, which was refused. It was this order that was the subject of the appeal.

The recent case of Re. C, which has been reviewed in an earlier blog, made it plain that the same principles should be applied when one parent applies for permission to relocate within the country, as are applied when the court considers whether one parent should be permitted to move to another country.

In re R we argued that the principle in international abduction cases should similarly be applied in internal ‘abduction’ cases (where one party moves without notice to the other). It was advanced both on behalf of the father, and the intervenor (the International Centre for Family Law Policy and Practice) that there should be a general principle that the child should be summarily returned to where he or she had been living, and that court should then determine the issues between the parties. This broadly mirrors international abductions where the country that the child has moved to is a signatory to the Hague Convention, save the return would be to the country rather than to the specific location.

The Court of Appeal did not accept this position, and made it clear that Re. C was not a sea change in the law and did not dictate a new approach. The child’s welfare remains the paramount principle. This decision will be concerning for many parents, as it would take a bold judge to apply the welfare checklist in such a way that a return would be ordered. Unless there is a change at statute level, this is likely to remain a lacuna in the law.

If you have any queries about this article please contact jonesnickolds on 0203 405 2300 or contact@jonesnickolds.co.uk