Posted: 25/11/2015
Today, 25 November 2015, the Supreme Court announced its judgment on a father’s appeal about whether the courts of England and Wales had jurisdiction to make an order for the return of a child to Morocco. The child’s mother moved him to England to live with her and her new husband in September 2013 without the child’s father’s knowledge or consent, thereby committing child abduction. The judgment was that the father’s appeal was approved and has been handed back down to the High Court to access what urgent orders are now necessary for the protection of the child.
Families today are more international than ever - whether it’s owning homes internationally, having family abroad, or moving across the globe for work, a new experience or to escape the British weather.
But what happens when a separated parent wants to take a child abroad or keep a child abroad? The easy answer is that, as long as you have the other parent or the court’s permission, you can do it. But to take the child without permission is child abduction and is as serious as it sounds. The majority of child abduction cases are committed by a parent or family member of the child but this is rarely portrayed in the media. While it is also rare for such abductions to be reported to the police, they are brought to the court’s attention.
Conventions, articles, regulations and measures have all been debated in minute detail by highly experienced family lawyers before the Supreme Court, but what does all this mean to a parent who wants to move abroad? Below are four key pieces of advice for separated parents who are considering taking their child abroad.
Although you may have your own reasons for wanting to move your child abroad and away from their home country or keep them for longer in the ‘other’ country, they are not enough. Permission must be obtained from the other parent who has the right to veto the child’s move abroad. All is not lost if this is not obtained as an application can be made to the court for its permission instead. Specialist family law advice should be sought to help you make sure you have permission to do as you intend. This will take careful planning and is best done well in advance of the proposed move.
Where there is any connection with a foreign country, advice should be sought on which country has the powers to make a decision about your child. Again, this should be considered in advance of any move or retention. But if you have made the move/retention and find yourself accused of child abduction, it is vital to take advice on which country holds the power.
In today’s case, the father made applications in both Morocco and England and two years later his case is still yet to be finally determined. The Supreme Court has passed his case back down to the High Court to reconsider what orders should be made now that it has been confirmed by the Supreme Court that England does have jurisdiction to make urgent orders to protect the child.
The speed with which you do everything will be key. When you sought permission of the other parent; when their permission ‘ran out’ (if given); when the child was removed; when the left-behind parent took steps to rectify the situation; and how long has since passed, to name but a few. The vital ingredient for success is speed. Take specialist international advice quickly.
The father in today’s judgment took six months before he made his application in England and Wales and it is now more than two years since the child was initially abducted by his mother from Morocco. The child’s life has now been embedded in England and the delays had an impact on whether England had the power to take protective measures for the child. The protective measures are likely to be more powerful the more quickly the case is brought before the court.
The left-behind parent will be eligible for legal aid without being means or merits tested. The ‘abducting’ parent will not. The abducting parent will be open to having their child removed back to their home country, with or without them; to having the child’s residence changed completely so that they reside with the left-behind parent either temporarily or permanently; to their own contact with the child being restricted; and to paying the other’s parent’s legal fees.
Laura Naser, a lawyer in the Penningtons Manches Guildford family department, remarked: “Family law cases are never run of the mill and, when you add an international element, parents can find themselves out of their depth and facing serious consequences very quickly. Seeking prompt specialist advice from an experienced international family lawyer is vital to the outcome of such cases, as demonstrated by today’s Supreme Court judgment.”
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