07 July 2011

Family law news: Home and away

Julian Lipson
Partner | UK

As family life becomes more international, the movement of children between different countries becomes a more common problem for separating parents and for the courts to grapple with. The Hague Convention on the Civil Aspects of International Child Abduction 1980 (the ‘Hague Convention') is an international convention under which children wrongfully removed from a signatory country or wrongfully retained in a signatory country are returned to their country of habitual residence.

Family law practitioners were given some much-needed guidance this month on the application of the Hague Convention in the case of E (Children) [2011] UKSC 84. The case considered an appeal by a mother who refused to return her two daughters to their father in Norway, having removed them to England from Norway against the wishes of the father.

The father applied under the Hague Convention for the children to be returned; the Judge at first instance decided that it was overwhelmingly in the children's best interests, for them to return to Norway for their futures to be decided there. The Court of Appeal rejected the mother's appeal against that decision, as did, subsequently, the Supreme Court, who concluded that:

‘the whole of the Hague Convention is designed for the benefit of children, not of adults. The best interests, not only of children generally, but also of any individual child involved are a primary concern in the Hague Convention process. We agree with the Strasbourg court that in this connection their best interests have two aspects: to be reunited with their parents as soon as possible, so that one does not gain an unfair advantage over the other through the passage of time; and to be brought up in a ‘sound environment', in which they are not at risk of harm. The Hague Convention is designed to strike a fair balance between those two interests. If it is correctly applied it is most unlikely that there will be any breach of Article 8 [of the European Convention on Human Rights] or other Convention rights unless other factors supervene.'

This helpful synopsis realigns the correct approach, which some feared would be impacted by the International Court of Human Rights' recent decision in Neulinger and Shuruk v Switzerland. In that case, the European Court held that to enforce the Swiss Federal Court's decision to return a child to Israel would be an unjustifiable interference with the right to respect for the private and family lives of the mother and the child under Article 8 of the European Convention on Human Rights

Category: Article