SC (a child), Re

In determining arrangements for a child recovered after prolonged international abduction, the child’s welfare remains the paramount consideration. Moral condemnation of the abducting parent, the left-behind parent’s grievances and foreign custody orders cannot justify an outcome contrary to the child’s interests.

Where family life has been disrupted, Article 8 requires effective participation in decision-making, that the child’s voice be clearly heard, and reasonable steps to facilitate reunion. Normal, unsupervised contact should ordinarily be established promptly. Supervision is appropriate only where clear and compelling evidence shows that unsupervised contact would jeopardise the child’s welfare. A mature child’s wishes may carry very great, even decisive, weight in residence and contact decisions.

The proceedings concerned an 11½-year-old girl who had been wrongfully removed from the United States by her mother and concealed in England for more than four years. The father obtained custody orders in California and initiated Hague Convention proceedings after the child was located.

Earlier proceedings determined that the child was settled in England and that the court retained discretion whether to order her return. The present hearing concerned the parents’ competing applications for residence, contact and leave to remove the child to the United States, together with the practical arrangements necessary to restore the father’s relationship with her.

1. Welfare and abduction. The mother’s conduct involved grave wrongdoing, but the applications had to be determined under section 1 of the Children Act 1989, with the child’s welfare as the paramount consideration. It would be a breach of judicial duty to sacrifice that welfare in order to punish the abduction or establish a point of principle.
2. Article 8 obligations. Sections 1, 3 and 6 of the Human Rights Act 1998, together with Article 8 of the Convention, required the parties to be sufficiently involved in the decision-making process and required the child’s voice to be clearly heard. They also required all reasonably necessary steps to facilitate reunion between the child and the left-behind parent in the special circumstances of the case.
3. Contact. In the circumstances, supervised contact was appropriate only if there were clear and compelling evidence that the child’s welfare would be jeopardised by normal unsupervised contact. The evidence did not meet that threshold. The father’s contact was therefore to become unsupervised and progressively increase, subject to safeguards concerning discussion of the proceedings and publicity.
4. Child’s wishes. The child’s expressed wish to remain living with her mother and to have normal contact with her father was genuine and mature. At 11½, her views deserved very great weight and gave her an almost decisive voice concerning residence and, in the circumstances, contact.
5. Orders and jurisdiction. The father’s applications for an immediate residence order and leave to remove the child to the United States were dismissed. Residence was ordered in favour of the mother, with unsupervised contact for the father. The court held that it had jurisdiction to make arrangements for contact in the United States under sections 2 and 3 of the Family Law Act 1986. Unlawful abduction did not prevent habitual residence after the relevant period and settlement had been established.
6. An order was made preventing publication identifying the child, her home or her school.

The judgment itself describes earlier proceedings concerning settlement and return under the Hague Convention. The Court of Appeal allowed an appeal from the earlier decision and remitted the matter for rehearing, after which the present High Court hearing determined residence and contact.