This is a complicated area of law so for a more detailed summary of what the law says, click on each of the questions below.
In Deepa and Preethi’s case, Ursula may be committing a criminal offence by taking them to Germany without the consent of Rahul. Additionally, Rahul would be able to ask the court in Germany to get them returned to England, which is the country where they lived before (we call this the ‘State of habitual residence‘). It may be that a ‘mediator’ could help the family to work out these difficulties but, if that is not possible, a judge in Germany will have to decide. Remember that the Convention aims for children to return immediately to the country where they lived before so the courts in England can decide where they should live. In Deepa and Preethi’s case, the courts in England can get information about their family life more easily than the courts in Germany because they have been living in England for the past 3 years. So, the English courts are in a better position to decide what is best for them when their parents cannot agree.
However, it is important to remember that, even though the Convention encourages a return, there are some important situations in which the judge can decide that they may not have to return to the country where they lived before, we call these the ‘exceptions to return’ which you can read more about here.
In Deepa and Preethi’s case, the court may decide that they are at risk of harm because of the harm which has occurred to Ursula from the domestic violence and abuse which she has suffered. It is also possible that, if Deepa and Preethi really do not want to return, this might mean that the court will decide that this amounts to what we call an objection to return under the Convention and that they should remain in Germany. Otherwise, the children will be returned to England (although not necessarily to live with their father). Ursula will have to decide whether she wants to stay in Germany without the children or go back to England with them. Usually, but not always, the taking parent will return with the children in these circumstances.
For a detailed description of what ‘exceptions to return’ means please click here
Article 12 of the United Nations Convention on the Rights of the Child 1989 (which is called the UNCRC) sets out that children have the right to have their views heard on matters affecting them. In some countries, the courts want to hear the views of children in every case under the Convention. In other countries, the courts will only hear from children who do not want to be returned to the country they lived in before. But remember that you have the right to ask to be heard.
Each country has different rules about how and when children can give their views to the judge. In some countries, children as young as age six are heard by the court. While in other countries only older children are asked for their views. It may seem unfair that different rules are used, but this is because the Convention works across more than 100 countries and every country does things slightly differently. You should ask the adults involved in your case to see what the rules are in your case.
Each country has different practices on how to hear from children. The three methods most used are:
In some countries, the child’s views are heard using one, two or all three of these methods.
The person you meet will be friendly and has usually spoken with many children in a similar situation. She or he will help explain why they have been asked to meet you. They will answer any questions you have and will ask you for your views. Once the meeting is over, they will provide a report for the court which sets out what your views are on returning to the country where you lived before.
The Children’s Rights Committee is a group of experts from around the world that advises countries on how to make sure children can enjoy their rights under the UNCRC. The Committee says that children should not feel they have to make a choice. Just tell the person who asks to hear your views if you prefer not to choose where to live and would rather the adults decide.
You can share your views on what you would like to happen, but do not have to go to court. In some countries you may be invited to the courtroom or to go to an online meeting, but if you do not want to do either of these, tell the person who asks your views.
There is a difference between the judge ‘hearing’ your views, and your views being ‘acted on.’ The judge is the person that will decide whether you stay in the new country or return to the country where you lived before.
To help the judge decide, the judge will want to know that the views are your own and that you fully understand how your choice could affect your future.
Even if the judge accepts that you do not want to return and that you fully understand the outcome of your decision, the judge must balance your views against other important factors including what is believed to be in your best interests. The judge will consider all these, and other, factors alongside your views and decide if you will return to where you lived before or stay in the new country.
Usually, when you tell the court your views, these are included in a report that is shared with all the people involved in the case, but you should check this with the person you meet when you share your views.