Legal team’s success could be used as example in future family law cases

Irwin Mitchell Private Wealth’s Manchester family law team has succeeded in the Court of Appeal in a complex international Hague Convention case.

The firm said the case will help others in a similar situation in future hearings.

Partner Nathaniel Groarke and solicitor Emma Bates, based in the firm’s Manchester outfit, represented a British mother in relation to Hague Convention proceedings when she sought to remain in England with her two children after travelling from Australia for a short trip. The children’s father remained in Australia.

The mother travelled from Australia to the UK to spend time with her father who was suffering from terminal cancer.

The mother later found rented accommodation and enrolled the children in school and nursery, anticipating the stay would need to be some months, considering the circumstances.

The relationship between the two broke down some months later, and the mother made the decision that she would like to remain in England with the children.

The mother tried to get an agreement with the father that she could remain in England and would facilitate contact with the father during school holidays, but he disagreed and issued his Hague Convention application.

At the first hearing in 2018 the father alleged that the mother was ‘clandestine’ in her actions to move to England and that she had intended, from the date she left Australia, to remain in England.

The judge found the mother had not intentionally planned her and the children’s move to the UK and that the father’s claims of the move being planned were not credible.

The judge also found that the children had become established in England, in part due to their young age and also because of the way the family had run their lives in Australia. The father appealed this decision and the Court of Appeal hearing took place last month.

The father alleged that the judge at first instance had given insufficient weight to the ties that the children had in Australia.

The Court disagreed and confirmed that the first instance judge was right to conclude the mother had not been clandestine in her plans to remain in the UK, and that the children’s ties in the UK were sufficiently strong to warrant an order allowing her to remain.

Family law experts at Irwin Mitchell Private Wealth hope this case will provide guidance for cases involving ‘repudiatory retention’, where the agreement between the parents about when the travelling parent and the children will return home is not as clear-cut.

Emma Bates, family law solicitor at Irwin Mitchell Private Wealth who represented the mother, said: “We’re very pleased we were able to secure a positive outcome for our client and her children, who will now be able to properly settle into life in the UK.

“Going forward this case will help others in a similar situation as it reinforces the courts’ previous decisions when considering applications to return children under the Hague Convention.

“It reiterates the need for the judge to consider the facts on a case-by-case basis and take into account the way in which individual parents manage their children’s lives.

“We’re pleased that the judge saw our client’s planning and enrolment of her children into English schools as practical parenting, rather than an underhand attempt to unlawfully retain the children.”

She added: “In a case like this, the facts very much depend on the individuals involved, and it is important for a judge to consider the actions of the parties both in isolation as well as in their totality when drawing conclusions.”