Case law update: Child Abduction

Parental child abduction cases are on the rise. In December 2012, the Foreign and Commonwealth Office launched a media campaign in which they revealed that parental child abduction cases had risen by 88% in under a decade. Between 2001 and 2011 there was a 206% increase in the number of children being taken to a country which has not ratified the Hague Convention on child abduction, making it much harder to arrange for the children’s return.

In two recent cases the main issue for the courts has been in determining where the children are habitually resident, and therefore whether they should be returned to the country from which they have been taken.

Child Abduction Case 1 – R v A

In R v A [2013] EWHC 692 (Fam) the parents originated from Zimbabwe and moved to California following their marriage. Their two oldest children were born in California and their third child was born in England. The parents had travelled to England on what the father claimed to be a temporary visit for the sole purpose of the caesarean section delivery of the third child. Following the birth, albeit after some delay due to medical complications, the family returned to California. Thereafter, the mother removed the children from California and brought them to England without the consent of their father.

In determining that the children were not habitually resident in England, the court considered the mother’s witness evidence to be “unimpressive” and inconsistent. The children’s stay in England had not become an ordinary part of their lives and the mother did not own a home there. An order returning the children to California was made.

Child Abduction Case 2 – FT and NT

In FT and NT (Children), Re [2013] EWHC 850 (Fam) both parents were British nationals who were born in the UK. Two years after the birth of their second child, the family relocated permanently to Canada. Whilst the father conceded that the move was intended to be permanent, he claimed that he made the decision to relocate conditionally on both parents finding jobs, being settled and being happy. The parties separated soon after their relocation.

The father maintained that there was always an agreement between the parties to return to the UK if either or both of them was unhappy in Canada. He contended that whilst the intention was to settle in Canada, this was never achieved.

The court dismissed the father’s assertions and found that there could be “no other conclusion” than that the children were habitually resident in Canada at the time of their removal by their father. The evidence in favour of this decision was “overwhelming” and included such facts as the family home in England having been sold six months before the move, the mother attaining employment in Canada and the enrollment of the children in a Canadian school and nursery respectively. The court accordingly made an order returning the children to Canada.

In 2011/12, children were abducted to 84 different countries. The Foreign and Commonwealth Office is limited in how it can assist parents whose children have been subject to parental child abduction, particularly where they have been taken to countries which have not ratified the Hague Convention. If you are concerned that your child is at risk of parental child abduction, you should contact a child abduction solicitor as soon as possible.

You can also download a help pack from the Reunite website at www.reunite.org.

For help and advice relating to child abduction cases, or any other area of family and divorce law, contact Lisa Kemp

“Shared Parenting” – What does it mean?

Background

Separating parents have long expressed frustration with certain aspects of the family justice system, with fathers’ rights groups in particular defiant in their stance against the apparent bias in favour of mothers when it comes to addressing the ongoing residence of the children. In a bid to tackle this issue, the Government has proposed several changes to the family justice system by way of the Children and Families Bill (“the Bill”).

One amendment put forward by the Bill is that Residence Orders and Contact Orders will cease to be, and a single concept Child Arrangement Order will take their place. The reality of Residence Orders and Contact Orders in their current form is that one tends to be seen as a “victory” over the other, adding to the animosity between conflicted parents.

The proposal follows from the Government’s response to the 2011 Family Justice Review, where it announced its commitment to promoting the importance of both parents remaining responsible for the care of their children. As a result, the concept of “shared parenting” has overshadowed the remainder of the legislative changes to become the buzzword(s) of the Bill.

“Shared Parenting”

A public consultation on the notion of shared parenting ran between June and September 2012 and the Government concluded that the starting point in any matter before Court should be that both parents should be involved in a child’s life (presuming of course that welfare is not an issue).

The concept of “shared parenting” to many evokes the presumption of a 50/50 division of residence and contact between parents, which is reinforced by a Child Arrangement Order. However, this is simply not the case and a starting point of 50/50 residence is in fact discouraged in the Family Justice Review.

It is crucial to remember that the Court will always give the most weight to the interests of the child when considering childcare arrangements. Therefore, whilst those parents who have less contact following the breakdown of a relationship are likely to feel let down by the justice system, those feelings are ultimately not the Court’s concern. The paramount consideration remains the child’s best interests and, more often than not, the Court deems that those interests are unlikely to be best met by a straight down the middle 50/50 split of residence.

That said, the importance of maintaining a relationship with both parents, taking into account all aspects of parental responsibility, is very much at the forefront of the changes proposed by the Bill. Contrary to much public opinion, this notion is nothing new to the Courts and does in fact form a major consideration in deciding almost all of the cases which appear before them.

What does the Children and Families Bill mean for you?

It has long been understood by the Courts and related agencies that more often than not, an ongoing relationship with both parents and close members of both extended families is likely to be beneficial to a child’s well-being following parental separation. It is also understood however that the quality of those relationships, rather than the quantity, is likely to be the most crucial factor in fostering and developing family relationships to the child’s greatest benefit.

Proponents of “equal access” for parents are likely to be disappointed by the Bill which does not, on that view, go far enough.

However, it will be open to the Courts to test the question of what shared parenting amounts to exactly and it may yet be the case that the Bill goes quite some way in leveling the playing field in respect of parents’ involvement in their children’s lives.

For advice regarding children matters or any other aspect of family law, contact Lisa Kemp

Surrogacy law update: Changes to Indian surrogacy law

Background

Since commercial surrogacy was legalised in India in 2002, the country has proved a popular destination for prospective parents intending to have a child via a surrogate. India’s surrogacy industry is estimated to be worth approximately $2.5billion and 25,000 foreign couples are estimated to visit India each year for surrogacy services.

India’s unregulated “surrogacy tourism” industry has however been subject to criticism and measures are now being introduced to regulate the so-called “rent-a-womb” culture.

New Measures

The Indian Council of Medical Research and Ministry of Health and Family Welfare have drafted The Assisted Reproductive Technologies (Regulation) Bill 2010 which is currently with Parliament for approval.

Home Ministry guidelines stipulate that to be eligible to enter into a surrogacy arrangement in India, intending parents must be a “man and woman” who are “duly married” and have been married for at least two years. Applicants must now enter the country on a medical visa rather than the previously allowed tourist visa. A medical visa will only be valid for three months from the date of issue and some couples have reported delays in obtaining the requisite visa.

Although the legislation is not yet enacted it has been reported that surrogacy clinics in India are already being required to register with the Indian Council of Medical Research and ensure that their foreign patients have the required Medical Visas before any treatment is given.

Issues

The new rules are severely detrimental to gay couples, single people and unmarried straight couples, for whom surrogacy may be illegal or very tightly regulated in the country in which they are domicile. Whilst some States in the USA, particularly Florida and California, are considered to be highly accommodating of surrogacy practices the cost of using a surrogate in America can be more than three times that of using a surrogate in India, thus preventing many intending parents from having a family in this way.

Supporters of regulation of surrogacy practices in India say that the current lack of legislation allows wealthy foreigners to exploit young, poor Indian women and to “commoditise” children. However, whilst the draft legislation does now place age restrictions on women who are eligible to be surrogates, there is no provision for minimum payment for surrogates and the measures proposed do not appear in any way relevant to addressing the issue of protection for surrogates.

The changes have been denounced by fertility clinics, gay rights activists and medical professionals for being discriminatory, without logic and introduced without proper consultation.  Some surrogates who are already pregnant for intending parents are concerned that the children they are carrying will be caught out by visa changes and could be left “stateless” due to their intending parents’ lack of ability to take them home after their birth.

It is yet to be seen whether the draft legislation will be challenged in the courts.

For more information on surrogacy or any other area of family law, contact Lisa Kemp