UK Family Law Reform

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Legal first as girl, 5, consulted in 'tug-of-love' court case

A five-year-old girl involved in a “tug-of-love” case has made legal history after being consulted by a court about which parent she wants to live with.

By John Bingham 16th April 2010

She was judged to been mature enough for her views to be taken into account in a decision which a court heard would have a “far reaching impact” on international child abduction cases.

The girl, who cannot be named, is one of three children at the centre of a bitter custody battle after their mother brought them to Britain from Ireland last year.

All three children had lived all of their lives in Ireland until their mother walked out on her husband while he was at work, bringing the three children with her.

The girl, and her eight year-old brother, displayed “visceral” objections to returning to live with their father, the court heard.

When their father brought a case at the High Court in London last month, attempting to force the mother to return the children to Ireland, Mrs Justice Black took the decision to canvas the views of both the girl and her eight-year old brother through interviews with social workers.

Although they were not said to have shown maturity beyond their years, they were judged to have “attained an age and level of maturity” to be consulted.

Their three-year-old brother was deemed too young to have a say in the proceedings.

The children’s father, who is Irish, challenged the judge’s decision at the Court of Appeal but it was upheld in what will be seen as a landmark ruling for the family courts.

It follows similar moves in the criminal courts. Last year a four-year-old girl became the youngest witness ever to give evidence at the Old Bailey.

Edward Devereux, representing the children’s father, told the appeal hearing that Mrs Justice Black’s decision to consult the girl had been “radical” and “unique”.

He said that five was “the youngest age in the reported jurisprudence at which a child has been found to have attained an age and degree of maturity at which it is appropriate to take account of her views”.

Mr Devereux told the court that the children, who are now living in southern England, had been taken away in a “clandestine” and “well planned removal”.

But the court heard that the social worker who interviewed the two older children had reported that, when she told them they might be ordered back to Ireland, the boy “became very fidgety” and his little sister started to cry.

They requested that if they had to return to Ireland, they should live in a secret location as far away from their father as possible, the court heard.

In her ruling, Mrs Justice Black said the children’s objections were rooted “in their own experiences of family life and their fear of their father” and there was nothing to suggest that they had been influenced or put under pressure by their mother.

Mr Devereux argued at the Court of Appeal that the judge’s ruling undermined the whole basis of international agreements requiring the future of such children should be decided by the courts of the country from which they have been taken.

However, after a two-hour hearing, Lord Justice Wilson and Lord Justice Sedley refused to grant the father permission to appeal, with the result that the children will stay with their mother in England.

Recognising the potentially widespread importance of the case, Lord Justice Sedley said the court would give reasons for its decision at a later date.

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