An English woman who did not want her two children to live with her ex-husband in Australia has lost a fight from beyond the grave.



The woman had written a will and said “under no circumstances” did she wish the youngsters – a girl aged eight and a boy aged seven – to return to their Australian father. Her parents and her ex-husband, who is of Aboriginal descent, became embroiled in a British family court fight over the children’s futures after she died late in 2014.

A judge ruled in favour of the woman’s ex-husband following a hearing in the family division of the high court in London. Mr Justice Roderic Wood had been told that the pair had married a decade ago and lived in Darwin, Australia.

The woman had cancer and had travelled from Australia to England for treatment with the children two years ago, when she was still married. Her then husband had agreed to the trip on the basis that she was going for treatment and the children would have a holiday. But without his knowledge, she had taken legal advice and decided that she wished to stay in England with the children.

She had signed a will and “made it clear” that she wanted the children to “have little or nothing to do with their father”, Mr Justice Roderic Wood said. The judge explained that she had written: “Under no circumstances do I wish my children to be returned to their biological father in Australia, as this would be extremely detrimental to their lives.”

She said she wanted a friend or a relative in England to bring them up – and the judge said they were in England being cared for by their grandparents. But the woman’s ex-husband said they should be returned to Australia under the terms of an international convention. He said they had been born in Australia, had grown up in Australia and that their habitual residence was in Australia. And he said he had never consented to them moving to England to live.

Mr Justice Roderic Wood agreed. The judge said the man had been misled by his ex-wife and that the children had been wrongfully retained by her in England. He said the man had not consented or acquiesced to the children starting a new life in England.

Neither child objected to returning to their father in Australia, and they had not “settled” in England, he added. He said there was no evidence that the children were told of the plans to keep them in England permanently.

“The children left Australia in July 2013 for a holiday,” the judge said. “They did not say goodbye to their friends, school or neighbours. They left many favoured objects behind them, fully intending to return.”