I’ve said it
here before, but quite often a large part of the job of a judge is simply to
decide which party is telling the truth. And so it was in the child abduction
case AH v AMH F (Summary return of child
to Sudan), decided by Her Honour Judge Hillier in the High Court last
October, but only recently reported on the Bailii website. The case is also
interesting for other reasons, including the weight to be given to the wishes
of the child.
Before
proceeding, I should explain something for the benefit of those who are
familiar with the principles used to decide child abduction cases involving
countries that are signatories to the Hague Convention on Child Abduction. This
case was a ‘non Convention’ case, as Sudan is not a signatory to the Convention,
and when deciding whether or not to order the summary return of a child to a
non-Convention country, the court does not operate by the principles laid down
in the Convention. In particular, the court must follow the principle that the
welfare of the child is its ‘paramount consideration’ (Hague convention cases
are one of the few types of children cases in which this ‘paramountcy
principle’ does not apply).
The case
concerned ‘B’, a boy aged ten, who has both British and Sudanese Nationality.
His mother is a Sudanese National, and his father is a British National, of
Sudanese descent. They married in Sudan in 2007 and B is their only child. B
was born in Sudan, but he and the mother lived for a short period with the
father in the UK. The parents separated and the mother applied to the English court
for permission to relocate permanently with B to the Sudan. The application was
granted, and B and the mother returned to Sudan in September 2009.
It was
agreed that B would return to England to see his father during the summer
holidays once he had reached the age of six. He came to the UK in 2016, but was
retained by his father at the end of the agreed period, and as a result the
mother did not agree to him coming in 2017. She did, however, agree to him
coming to England in March last year (when the school holidays began in Sudan),
although the exact circumstances were disputed by the parents.
The father
maintained that he had no particular intention to keep B here, until he asked
him what he wanted to do. He gave B the option of staying here and getting a
better education and healthcare. B had told him that he wanted to stay here. He
suggested that the mother had indicated that she didn’t mind whether B was
educated in Sudan or England.
The mother’s
version of events was that she agreed for B to stay in England with his father,
but only until the school was due to start again in Sudan, in July. She had
never indicated that she agreed to B remaining in England. The father told her
in April that he did not intend to return B to Sudan, and enrolled B in an
English school, without asking her.
The mother
applied for the summary return of B to Sudan.
Judge
Hillier did not accept the father’s evidence. She found that he had lied about
several things, and had had no intention at all of returning B to Sudan when he
collected him at the end of March. On the other hand, the mother had been
truthful, and Judge Hillier accepted her version of events.
As to B’s
welfare, she found that this would be best served by his returning to Sudan. He
had a much stronger connection with that country, having lived there for the
vast majority of his life. B had indicated a preference to remain in this
country, but Judge Hillier, who had met him, found that he was clearly too
immature for her to give very significant weight to his views, and that he had
been significantly affected by his father, saying what his father wanted him to
say.
Judge
Hillier also expressed concern about the father’s behaviour, which she said demonstrated
his complete lack of insight into his son’s needs. In her assessment, she said, B will
have suffered emotional damage by his father’s unilateral actions, because it was
not a planned consensual move. She found that the mother was able to meet all
of B’s physical, emotional and health needs, whereas the father seemed “absolutely
unable to comprehend his son’s emotional needs”, and therefore could not meet
them.
Accordingly,
Judge Hillier ordered that B should immediately be returned to Sudan.
You can read
the full judgment here.
The post Father ordered to return child to Sudan despite wishes of child appeared first on Stowe Family Law.
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Author: John Bolch