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There has been a number of cases where fathers have come to the UK to seek their children following abduction by the mother.

The problem for many fathers is that the world is a big place, and the UK may not be the first country in which they search. Sometimes the mother may have family or other connections in the UK, but very often the father will come here as the result of a tip-off, and it may be several years since he last saw his children. If the children are “settled” the courts will be very reluctant to take any action; the best such fathers can hope for sometimes is monetary compensation.

You should refer to Practice Direction 12F which tells you what to do if your child is brought into England or Wales without your consent,

If the country from which you come is one of the Brussels II Revised countries you should be able to register any order made in your home court in a UK court using the procedure in Part 31 FPR 2010 using an Annex II certificate.

If the country from which you come is a signatory to the Hague Convention you should contact the “Central Authority” in that country to make an application for the return of your child to the Central Authority for England and Wales. You can also contact the Central Authority for England and Wales direct, or instruct a lawyer to do it for you, and you will then get legal aid to help you.

In England and Wales the Central Authority is the Lord Chancellor and his duties are carried out by ICACU, the International Child Abduction and Contact Unit,

81 Chancery Lane

London

WC2A 1DD

DX 0012 London Chancery Lane

Tel: + 44 (0)20 7911 7045 / 7047

Fax: + 44 (0)20 7911 7248

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Outside of normal working hours you should contact the Royal Courts of Justice on:

+ 44 (0)20 7947 6000, or

+ 44 (0) 20 7947 6260

ICACU will forward your application to an experienced solicitor who will take your case on and sort out your legal aid.

Case study: Cannon

In the case of Cannon v Cannon [2004] EWCA Civ 1330, [2005] 1 FLR 169 the American entertainer Josef Cannon found himself caught by the Hague rule that after a year an abducted child is “settled” and may not be returned.

Although he had been awarded full legal custody of his daughter Shelby by the Superior Court of Los Angeles at an ex parte hearing in 1999, it had taken him several years to track down her whereabouts.

Shelby’s mother, Catherine, had taken her to Ireland where she took a dead child’s name from a graveyard and created a new identity for her daughter, including celebrating her birthday on the dead girl’s birthday.

The Court in Dublin had ordered the mother to return her daughter while the LA District Attorney’s Office issued a felony arrest warrant against her for kidnapping.

Catherine appealed and Mr Justice Singer ruled according to the Hague Convention that the child was now settled in her new environment. In November 2004 Josef appealed this decision before Thorpe, Waller and Kay LLJ.

Lord Justice Thorpe allowed the appeal, saying that there were two issues.

· First, what was the proper construction of the phrase “the child is now settled in its new environment”?

· Second, once the defendant had proved that the child was “settled in its new environment”, did the court nevertheless retain a residual discretion to order the child’s return?

A critical aspect of the case was that Shelby had been hidden away and it was therefore difficult for her mother to demonstrate that she was settled in her new environment and thus overcome the obligation to return her. It was the mother’s subterfuge which had caused the delay in Josef tracking her down and bringing the case to court.

The mother had committed a criminal offence when she had abducted her daughter and had been sentenced in absentia. She had then compounded that offence by concealing Shelby’s identity and whereabouts. Thorpe considered that just as “a fugitive from foreign justice would not acquire habitual residence in this jurisdiction simply by reliance on a temporal period during which the claimant had outwitted authority” so it could not be considered that a child was settled in a new environment or had acquired habitual residence in the new environment.

For a child to be settled required that she be emotionally settled as well as physically settled, and that could not be possible while the mother was on the run and a fugitive from justice: the child’s emotional state was dependent on the mother’s. Finally, even if settlement were established on the facts, the Court retained a residual discretion to order a return under Article 18 of the Convention.

The appeal itself (Re C (Abduction: Settlement) (No2) [2005] 1 FLR 938) failed because Kirkwood J believed that the child was indeed sufficiently “settled in her new environment” to meet the Convention criteria, thus setting the precedent that recovery under the Convention can be defeated if one hides the child abroad for long enough. Kirkwood declined to exercise his discretion to order return.

In 2006 Joseph brought the case back to court as Re C (A Child) [2006] EWHC 1229 (Fam) where it was heard before the President of the Family Division, Sir Mark Potter. The mother’s defence was:

· Removal of the child could not be a breach of the custody order in favour of the father because the order was made after removal.

· The child was “settled in her new environment.”

· Return to the US would expose the child to physical or psychological harm.

· The child, now aged 14, objected strongly to return.

Potter capitulated on all points: the mother could not have breached the 1999 custody order because she was unaware of it; he criticised the father’s credibility.

Potter found that although Shelby was “unsettled” psychologically this did not demonstrate she was not “settled” for the purposes of the Convention. Her objections to return were deemed to be hers and not her mother’s and it was thus unnecessary to determine whether the defence of risk of harm was established or not.

Potter declined to order the girl’s return saying that it would uproot her at a vulnerable age and destroy the attempts of her mother to establish stability.

Josef eventually restored regular contact with his daughter, but she remained in London while he continued to live in California. Shelby’s mother faces kidnapping charges should she ever return to the US.

[1] Dr Marilyn Freeman, Relocation: the Reunite research, the Reunite Research Unit, July 2009

[2] Parkinson, Patrick; Cashmore, Judith; Single, Judy P.; The Need for Reality Testing in Relocation Cases, Family Law Quarterly, Vol. 44, No. 1, pp. 1-34, 2010 , Sydney Law School Research Paper No. 10/119