Testimony of teenage children safeguards mother from prison sentence after they are not returned to Spain

Case report: Cambra v Jones & Jones [2014] EWHC 2264 (Fam)

An English mother of five children faced a potential prison sentence after two of her children were not returned to return to Spain to live with their father as she was unable to persuade them to travel.

The children’s father was Spanish, and he had obtained custody for all five children in 2008. The couple’s divorce was far from amicable, and they had been in and out of court several times since the summer of 2012, when the mother retained the children in the UK without permission.

By 2014, the oldest child and the two youngest children had returned to Spain, but the middle two – a daughter aged 15 and a son aged 13 – remained in the UK and were adamant that “there was no way they were going back to Spain” with the son saying, “You’d have to tie me up; you’d have to drug me.”

The daughter, who had her own legal representation, was also adamant that she did not wish to return to Spain, saying:

“I don’t think anyone in this country is going to drag me kicking and screaming, they’re not going to drug me, they’re not going to put me in handcuffs. I’m not going to get on that plane. Once I get to Spain, if I’m not legally allowed to live with my mum here in Wales, they won’t let me get on a plane to come back home.”

A CAFCASS officer, whose role is to listen to the children and help to establish their best interests, described their resistance as “exceptional” and he could not identify “any means by which their compliance might be secured”.

Teenagers are known for being wilful and uncooperative, but in this case the court had to determine to what extent the mother was responsible for their failure to return to Spain – given that this was in breach of several court orders. If the father could show to a criminal standard of proof that his ex-wife was in contempt of court, then she faced a potential prison sentence.

However, the mother maintained that it was impossible to compel these two teenage children to return to Spain – or even to come to London for another meeting with the CAFCASS officer.

The court criticised the mother for her parenting approach, asking “Why, for example had she not threatened ‘grounding’ or the confiscation of mobile phones, computers or electronic equipment?”

However, the father was unable to prove that “the mother could, whether by argument, persuasion, cajolement, blandishments, inducements, sanctions or threats falling short of brute force, or by a combination of them, have ensured compliance with the orders” to meet the criminal standard of proof required.  Consequently, his application for the mother to be committed to prison was rejected.

Sir James Munby, then President if the Family Division commented that listening to the children’s evidence:

“… was one of the saddest experiences of my time on the Bench. Her account of how and why her previously close relationship with her elder sister has changed was poignant. It is almost unbearable to think of these five siblings divided as they are, three living in Spain with their father, the other two with their mother in Wales, and all five having as little contact with each other as seems at present to be the case. … Both parents bear a heavy responsibility, not so much to the courts as to their children.”

Click here for the full case report.

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