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Legal advice on child residence, contact and other arrangements.
|- Expert Legal Advice|
|- Child Court Orders|
|Our Areas Of Expertise|
- Residence (Who the
children will live with)
- Contact (How often
you can see your child)
- Apply To Take
- Prevent a Planned
- Dealing With
Recover a child who has been taken or kept overseas
In most westernised countries there is a treaty called the Hague Convention which provides a set of standard rules that should be followed by every country that has signed up to the convention.
As a general rule, for married couples, if either parent wishes to take the child abroad for a holiday or premanently then they have to seek and obtain permission from the other parent. The issue is more complex where the parents are not married.
In family law, "Child Abduction" is the area of law covering children being removed from their normal country of residence:
Wrongful Removal - when one parent takes a child abroad without the permission of the other parent or the court.
Wrongful Retention - where a parent did obtain permission to take the child abroad temporarily, perhaps for a holiday or family visit, but then later fails to return the child on the agreed date.
The courts when dealing with child abduction matters are primarily dealing with which country's court should deal with the welfare arrangements for the child concerned. If, for example, a child has been brought to England & Wales without the permisssion of the other parent or the foreign court the normal result is for the child to be sent back to what is called their country of habitual residence.
The examples listed above are not exhaustive.
It is also important to consider how the foreign courts will deal with a returning child and parent. For example, a parent and child returning from the UK to the USA after being ordered to return after a finding of child abduction is likely to be treated in a significantly different manner than if that parent and child were returning from the USA to the UK as on the whole US courts take a more punitive view to a parent seen as an abductor than the courts in England & Wales do.
In an ideal world parents need to make the proper application to the court for a relocation of the child to the country they seek to live in rather than take actions which can lead to severe civil and criminal sanctions.
Case Study A - Successful return to UK of child removed by father
We represented a mother in a case where her 2 year old son was abducted by his father to the UK from 'Country A' which is not a party to the Hague Convention.
The father is a British national, the mother is a citizen of 'Country A'. there was an altercation following which the father had refused to allow the mother to see the child.
Proceedings were started in 'Country A' however, later that year the father unilaterally removed the child to England. He then made an application under the Children Act in the English Court without referring to the full facts of the case.
Although it transpired that the boy is a British National meaning that his removal to the UK was not unlawful, the Judge in the case decided that the removal of the child in such a clandestine manner without the knowledge of the mother was the important factor in deciding what was in the best interests of the child and criticised the father for doing this.
The judge decided on a welfare basis that it was in the child's best interests to return to 'Country A'. Our client, the mother was delighted to be able to welcome her son home.
Case Study B - Successfully defended against challenge to existing agreement
We acted for a mother who was a Polish national. Their child was living with them in the Midlands. The father was also a Polish national, living in Poland. The father and the mother were in court proceedings in Poland. They resolved arrangements for that child, aged 4. The mother left Poland with the child.
The father then said that the mother had wrongfully removed the child from Poland in breach of his rights of custody. The father, therefore, issued Hague Convention proceedings seeking the return of the child to Poland so that the welfare issues were to be decided in the Polish Court. the mother indicated that she wished to defend the proceedings on the basis that the father had consented to the removal.
In Poland the court discussions were recorded on a court tape. After written evidence, significant investigation of social media postings and permission from the Polish courts to obtain the court tape it transpired that the father had given permission. Once it was proved that the father had consented to the child and the mother coming to England to reside on a permanent basis it was then a matter for the High Court to exercise its discretion in deciding whether to allow the child to remain in England.
The court found that the child was settled in England, doing well in school with a decent network of friends. In the circumstances the court dismissed the father's application for the return of the child to Poland.
The mother was extremely pleased with the outcome. She had settled in England and was delighted that we had uncovered through our investigations the vital evidence from the Polish courts.
Expert family lawyers who specialise in issues relating to children
Our services are delivered by highly experienced solicitors who are specialists in child related family law matters and capable of handling complex cases particularly those with an international aspect.
Brethertons are a successful law firm with an excellent reputation. They are highly rated in the Legal 500 and Chambers directories. They have grown rapidly in the last few years and now have over 250 employees. They have a large and experienced family law department that is capable of handling complex cases involving divorce, finances and child contact/residence issues. Brethertons are fully accredited by the Solicitors Regulation Authority and follow their code of conduct.
Simon Craddock is the partner responsible for child related family law matters at Brethertons. Simon is a specialist in international child abduction law. He is one of only a handful of qualified lawyers in the UK who is a member of the International Child Abduction Hague Convention and Wardship panel. Simon is one of the few recommended solicitors endorsed by Reunite and ICACU. His family law expertise includes ancillary relief matters, and he has a deep understanding of international family law. He recently became a member of the International Bar Association.
These organisations provide specialist support and advice to parents dealing with the issue of child abduction.
Reunite is a leading UK charity specialising in the movement in children across international borders. They operate a free advice line offering practical, impartial advice, information and support to parents, family members, and guardians who have had their child abducted, as well as parents and guardians who may have abducted their child. The advice line number is 01162 556234.
Child Abduction Lawyers Association (CALA) is an organisation set up in 2014 to share legal information between legal professionals expert in this field and other connected organisations in relation to the law and procedure relating to worldwide child abduction matters. Brethertons have several solicitors who are members of this organisation.
The International Child Abduction and Contact Unit (ICACU) is a part of the Ministry of Justice acting as an administrative platform in order to assist people whose children have either been abducted or been retained to/from England and Wales. They coordinate arrangements with other countries. They have a specialist law firm panel of approximately 50 firms. Brethertons have been a member of this panel since 2001.
The Legal Aid Agency is an executive agency sponsored by the Ministry of Justice. If your child has been abducted or wrongfully retained in England & Wales and you live outside England & Wales you are automatically entitled to free Legal Aid if you live in a Hague convention country. If you do not live in a Hague convention country or if you are respondent in such a case then you may qualify for Legal Aid if you have a modest income or are in receipt of state benefits. The Legal Aid Agency has an easy to use calculator.
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