The family courts have dealt with various abduction cases over the years and some have had similar factual circumstances. In at least two cases English courts were faced with the children objecting to their return in an apparent defence of the abduction. Interestingly, courts have decided those cases very differently. 

Background:

The mother is of Czech nationality and the Father is British. The parties met in the UK and married in July 2014. Both children were born in the UK, B and N, but lived in the Czech Republic from 2020 until travelling to the UK in June of 2024. 

There were difficulties in the parties' marriage in 2017 and Children Act 1989 (CA 1989) proceedings were issued by the father after the mother allegedly assaulted him. The parties however resumed their relationship in December 2017. Between 2020 and 2024 the Father travelled back and forth to the UK for his work and the mother was the primary carer of the children. 

In December 2023, the parties eventually agreed to divorce. Initially, the parties agreed that the children would remain with the mother in the Czech Republic and that the father would continue his visits to see them. The father however claims that the mother repeatedly said that the children wanted to move to live with him in the UK and she had agreed to this, although the mother denies this allegation. 

The father travelled to the UK with the two children on the 9th of June 2024 and they have subsequently remained in the UK. Contact between the mother and the children only resumed after proceedings were issued. B conveyed his reluctance to return to the Czech Republic due to allegations of physical aggression and his being unhappy at school. 

Decision: 

The Court first restated the objectives of the Hague Convention of 1980 and associated case law. The Judge then looked at the potential reasons a court is not obliged to grant an order of return of the child under Article 13 (a) which mentions consent and the burden of proof being on the father. After analysing all the evidence, the Court found that the evidence overwhelmingly supported the conclusion that the mother consented to the children’s relocation to the UK, based on the balance of probability as set in Re G. The Judge placed “considerable weight on the documentary evidence produced by both parties, including the WhatsApp messages passing between them and the WhatsApp video call.” The Court rejected the mother’s argument that the “WhatsApp messages should be disregarded as ‘silly messages’". Moreover, the father’s oral and written evidence were internally consistent, while the mother’s was not. 

The Court then analysed B's objections and wishes not to return to the Czech Republic. The legal principle requires the child to have sufficient maturity to make such a decision, which the Court found he possessed. 

Implications:

The mother's consent played a crucial role here, in the balance of probability. Her inconsistencies also played against her, which highlights the importance of being honest with the Court. The Judge also made it clear that the WhatsApp messages were important to understand. 

Interestingly, in this case, the Court agreed with the objection of the children, in P, In the Matter of (RE Child Abduction and Custody Act 1985 incorporating the 1980 Hague Convention on Civil Aspects of International Child Abduction) (Rev1) [2024] EWHC 3208 (Fam) decided a few days earlier, the Court reached a different outcome. While the objections of the oldest child were accepted in a previous ruling, the nature and strength of the youngest child’s objections were not considered sufficient. Despite struggling in school, like B (which was one of the reasons for his refusal to return to the Czech Republic), in Re P, the school report stating there were no academic problems weighed on the Judge’s decision. 

It highlights that abduction cases are very fact-intensive and require a difficult balancing exercise by the courts. However, children’s objections will be considered valid if they are made repeatedly, backed by evidence, and the child is considered mature enough.