Implementing child abduction return orders – limits of the High Court

Re W (Children) (Abduction: Implementation of Return Order) [2019] EWCH 357 Fam‍

This was an interesting child abduction case which highlighted some limitations of the High Court in implementing return orders. This case concerned two children, aged 5 and 6, who were removed from Texas to the UK by their mother. An order was subsequently made to return the children to the US, as both the mother’s defences for removing her children were rejected.Interestingly however, the mother faced immigration difficulties in securing her own re-entry to the US. This was recognised by High Court Judge Mrs Justice Knowles who held that the return would be postponed until the mother had applied for a humanitarian parole visa. If the mother was successful in her application, she would accompany the children to the US, but if she was not, the children would be returned to the US without their mother.This potential separation from the children was then appealed by the mother at the Court of Appeal. The mother stated that her separation from the children would place the children in an intolerable situation. On the basis of separation, the mother’s appeal was partially successful. The Court of Appeal held that the mother still ought to pursue her visa application and should it be successful, she must return to the US with her children. However, they would not force a separation. The mother complied with this order and applied for a humanitarian parole visa, which was subsequently refused with no right of appeal. The children were to therefore remain in the UK with their mother. The father was, however, unsatisfied with this result and subsequently applied to the High Court for further directions to implement the return order of his children. Specifically, the father sought a direction to order the mother to apply for an alternative visa (B1/B2 visa) so that she may enter the US. He sought to apply for this direction under s.5 of the Court of Appeal’s return order. The precise wording of s.5 was crucially important.s.5: “There is permission to each party to apply to the High Court as to the timing and implementation of the said return”. Upon careful consideration of the Court of Appeal’s decision, Judge Knowles acknowledged that s.5 did not allow for the mother’s undertakings to be altered and she could not therefore be compelled to apply for an alternative visa. This was due to the fact that the mother had not actually been granted entry to the US and so no return order actually existed. Moreover, there was no explicit permission from the Court of Appeal for its order to be varied. The High Court could not, therefore, compel the mother to make alternative visa applications and the mother and children remained within the UK. If you have an international child dispute or are embroiled in child abduction proceedings and need advice, please contact Amna Khaliq on 020 8885 7971 or a.khaliq@wilsonllp.co.uk, or for an appointment, contact Mavis on 020 8885 7986.