Boy (13) wins right to stay with dad after legal battle
Published 13/01/2012 | 05:00
A 13-YEAR-OLD son of divorced parents who refused to return to his mother in England following a holiday with his father in Ireland can remain here, the High Court has ruled.
The boy's mother had brought proceedings under the Hague Convention on Child Abduction seeking an order requiring his return to England and claiming he would have better schooling and a better life there.
The parents married in 1995 in the UK, separated in 2005 and divorced in 2008.
After that the Irish father returned here with all three of their children -- two boys and a girl -- with the mother's agreement.
No formal custody or access agreement was put in place, but the mother maintained contact with the children who also spent alternate Christmases with her.
The girl later went to live with her mother, but the boys remained here with the father until 2010 when the younger boy also went to live with his mother.
He said he did so because he was promised a better life there but, in July 2011, after a two-week holiday with his father, said he wished to remain here and did not return to the UK.
There was a dispute about the circumstances in which the boy decided to stay.
But a clinical psychologist who interviewed him said she was satisfied his views about wanting to stay were his own and genuine, he was well capable of forming and expressing them and had done so without pressure from others.
Mr Justice Michael Peart ruled, after balancing this "sufficiently mature" boy's "genuinely held" objections against the aims and objectives of the Convention, that this was one of those exceptional cases where a child should not be returned to his country of habitual residence which, in July 2011, was the UK.
While Article 12 of the Convention required immediate return of a child wrongfully removed, Article 13 permitted the court some discretion as to whether to refuse that order in exceptional cases, he said.
In this case, of "particular" note was the fact that the boy had seven years' experience of life with his father and of attending school here with which to rationally compare the 12-month period spent between 2010 and 2011 living with his mother in the UK, the judge said.
While he chose to go to the UK then, he had told his father he did so after indications either by his mother or sister that his life would be better there and he could return to Ireland if things did not work out.
There was limited evidence that his father was short of money as he was attending college and in such circumstances the promise of a better life in the UK may have had "some superficial attraction".
It was not contrary to the purposes or terms of the Convention to allow the boy change his mind before it was "too late", the judge ruled.