TV Edwards Blog

Blog Children Law Family

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the child abduction Hague Convention”) is a treaty which aims to protect children from the harmful effects of international wrongful removal or retention i.e. abduction, and to establish procedures for their prompt return. 

Steadily over the years, the contracting states to the child abduction Hague Convention has grown. This clearly is a positive step to help increase the prospects of more and more parents to recover their children in these sad situations. 

The child abduction Hague Convention has proved to be an important treaty to assist parents. It provides a focused mechanism that parents can follow in a time of desperation when they are separated from their children, often separated suddenly without any warning or obvious alarm bells. It is for this reason that it is welcome news that the child abduction Hague Convention will be in force between the UK and seven more countries this summer.

From 1 July 2016 the child abduction Hague Convention will be in force between the UK and the following seven additional countries:

• Albania 
• Andorra
• Armenia 
• Morocco 
•  Russia
•  Seychelles
• Singapore 

Therefore parents whose children have been abducted to or from these seven countries will now be able to follow the procedure that the child abduction Hague Convention provides to be reunited with their children. It is also worth remembering that this Convention has a dual purpose and provides a mechanism for parents to secure “access” (as it is referred to in the Convention) with their children. This is a useful additional feature of the child abduction Hague Convention as in England and Wales, parents using the Convention to secure access to their children will be granted legal aid to help pay for their legal fees subject to their financial situation and the factual circumstances of their case.

Andorra, Seychelles and Singapore are interesting new additions given that they are not signatories to the 1996 Hague Convention. Also Brussels II Revised is not applicable to Andorra, Seychelles or Singapore owing to them not being EU states. Both the 1996 Hague Convention and Brussels II Revised provide an alternative or additional recourse to the child abduction Hague Convention to assist in child abduction situations. Therefore, in the case of Andorra, Seychelles and Singapore, the child abduction Hague Convention will provide the only international mechanism to recover abducted children once it is in force with the UK from 1 July 2016. 

The Neustadt v Neustadt (Child Abduction) [2014] EWHC 4307 case was the first between the UK and Russia in which the 1996 Hague Convention was successfully utilised to recover children who had been wrongfully retained in Russia following a holiday. This was shortly after the 1996 Hague Convention came into force between the UK and Russia. This therefore provides useful reassurance as to the implementation of the child abduction Hague Convention in Russia from 1 July 2016. 

Child abduction is a highly specialist area of family law and TV Edwards LLP are one of only a limited number of law firms in England and Wales who have the requisite expertise to conduct these cases. TV Edwards LLP are on the International Child Abduction and Contact Unit’s panel of specialist child abduction lawyers. Always seek specialist advice so that you have the best possible chance of success at an undoubtedly distressing time and are guided properly through what can be a complex process. If you are involved in a child abduction or other international children law situation then please contact Mandeep Gill or another of our specialist team on +44(0)203 440 8000 or email A_FamilyReferrals@tvedwards.com

Claire Longland

Senior Associate Solicitor

Blog Children Law Family

On 13 April 2016 the Supreme Court handed down judgment in the matter of N (children) [2016] UKSC 15 which has provided the latest twist in recent case law looking at when family cases should be transferred to another European jurisdiction. This is an area which has received a lot of attention over recent years with much case law and guidance being issued to the courts and family practitioners. In this case the Supreme Court allowed an appeal against an initial decision that care proceedings concerning two young girls should be transferred to Hungary.

The girls are almost 3 and just over 4 years of age respectively. Their father is of Hungarian Roma descent and their mother of mixed Hungarian and Roma descent. The girls are of Hungarian nationality but were both born in England and have lived here their entire lives. They have been in the same foster placement since removal from their parents’ care following Ella’s birth.

The question for the court was the correct interpretation of Article 15 of the Brussels II (revised) Regulation. The starting point is that a case should be heard in the member state where the child is habitually resident, in this case the jurisdiction of England and Wales. Article 15 sets out circumstances where transfer of the case is permitted if another member state is “better placed” to hear the case and this would be in the best interests of the child.

The High Court found that the Hungarian Court was better placed to hear the case after weighing a number of factors both for and against this decision. The judge held that if the Hungarian court was better placed to hear the case it followed that it would be in the children’s best interests for the transfer to take place.

The Court of Appeal, including the President of the Family Division, dismissed the initial appeal. The Children’s Guardian, on behalf of the children, therefore appealed to the Supreme Court.

The Supreme Court unanimously granted the appeal, Lady Hale giving the only judgment. This judgment set out that the two tests are separate, and it does not automatically follow that if the court of another member state is better placed to hear the case that it is in the child’s best interests for the transfer to take place.

Lady Hale agreed with the judge in the High Court that, when looking at the best interests test in this context, it is whether the transfer is in the child’s best interests rather than the eventual outcome. However, she found that the impact of the transfer on the welfare of the child and on the choices available to the court deciding the eventual outcome must be considered. In this case therefore it was relevant that the effect of a transfer would be for the girls to be moved from a foster placement where one child  had lived for almost her whole life and the other  most of hers where they were happy, settled and doing well to a new placement in a country they had never been to before. Were the case to remain here, one potential option was for the children to remain in the long term in their current home. It was also relevant that transfer to Hungary would rule out this one potential option, and that the courts in this jurisdiction could achieve the same outcomes as the Hungarian Court in respect of a placement there, and therefore had a wider range of potential options available to them. The Supreme Court therefore held that the judge of first instance erred in finding that it was in these children’s best interests for the case to be transferred to Hungary.

This case represents a welcome shift back to ensuring the child’s best interests are at the centre of decision making even where the decision relates solely to where the case should be heard. The fact that another court may be better placed to hear the case (and this was not accepted by Lady Hale to be the case) does not mean it should be transferred where that would not be in the best interests of the child concerned.  

The full Judgment can be found here: https://www.supremecourt.uk/cases/docs/uksc-2016-0013-judgment.pdf
We have many experienced and accredited specialists who could advise you in relation in respect of care proceedings, including those with international issues. 

Claire Longland

TV Edwards Blog

Blog Children Law Family

I am frequently asked what grandparents’ rights are when they have been prevented from seeing their grandchildren. It is a sad truth that grandparents do not have an automatic right to spend time with their grandchildren, and we see all to often after a relationship breakdown for the parents, grandparents finding themselves excluded by the parent with care of the children. That said, the family courts do recognise the important role that grandparents have to play in their grandchildren’s lives. Therefore, it is rare that the court would refuse a grandparent time with their grandchildren unless there is evidence of abuse. That said, it is likely to be more limited contact than they may wish to have.  

Can grandparents apply to the Courts to spend time with their grandchildren?

Most grandparents do not have an automatic right to apply to the court, as most do not have parental responsibility for (usually held by the children’s parents), or care of the children. However, although not having automatic rights grandparents can apply for permission to apply for a Child Arrangements Order, the courts will consider the following:

• Their connection with the child/ren.
• The nature of the application for contact.
• Whether the application might be potentially harmful to the child/ren’s well-being in any way.

If the permission application is successful, you can apply for a Child Arrangements Order through the court to see to your grandchildren. If one, or both parents raise objections there may need to be a report prepared about the impact of contact, and there is also likely to be a full court hearing at which all parties can put forward their evidence. It would be extremely beneficial for you to receive good legal advice at this stage to advise and assist you with persuading the court that you have a meaningful and on-going relationship with your grandchildren, which significantly benefits their lives.

The court will always consider all the child’s circumstances and must only make an order where they consider it better for the child than making no order at all. For example, they might have to weigh up the impact of contact on the family relationships. We have successfully helped many grandparents resolve disputes amicably and gain access to grandchildren. Mediation can be the best first step to try to avoid going to court if possible. 

If you need help with access to your grandchildren please do not hesitate to contact us.