Summer holidays could trigger international disputes over children
Mace & Jones legal 500 top tier rated family team said there are an increasing number of marriage break ups in the UK where one partner, who is not British, wants to return to their country of origin. This immediately plunges the couple into complex disputes over where their children live.
Mace & Jones family partner Emma Collins said she feared the summer holiday period will heighten problems between couples whose families live abroad. Visits to grandparents and close relatives overseas often confirms a desire to return home as well as deep rooted problems couples have she said.
“Summer holidays can bring relationship problems to a head,” she said. “But couples should be aware that any dispute over where a child lives and how much time they spend with each of their parents is fraught with difficulties. It is further deeply unsettling for children, parents and the wider family. It is difficult enough for couples separating in this country to deal with the fact that their children will spend part of their time living a short car journey away. The idea of their children living in a different country raises the stakes considerably and the pressure on both parents is extreme. If the dispute is between the children living in, for example, either England or California, how can a compromise be negotiated? The dispute is so fundamental that there are few meaningful concessions for either party to offer.”
Ms Collins said Mace & Jones family team has specialist child law lawyers who can advise on issues of this nature. She said learning from the team’s experience it is critical for any couple embroiled in an international dispute to receive clear guidance from outset. Only then she said are couples aware of case law, the potential cost of a dispute, the strength of their case and any foreign legal issues.
RECENT CASE LAW
Ms Collins said in May 2010 alone there were two decisions of the Court of Appeal about which country the parties’ children should live in. In the first case three children were brought to London from the Republic of Ireland. In the second, a seven year old girl was returned to England under a court order from the Czech Republic so that the court could decide where she should live. Both cases involved parents of different nationalities. In each case, on the breakdown of the parents’ relationship, the mother returned to her home country taking the children with her and the father issued proceedings for the children to be returned.
The decision allowing a mother to return to the Czech Republic with her daughter is consistent with an earlier Court of Appeal decision and reinforces the principles a court will take into account in deciding such a case. Emma Collins points out, however, that “any such judgment is finely balanced. One parent in this case was English, one Czech. They had tried living in both countries and their daughter had spent half her life in each country. She spoke both Czech and English. At the age of seven she understandably expressed no strong views, positive or negative, with regard to which country she lived in.”
In the other Court of Appeal case the middle child of three was aged five at the time she spoke to the court welfare officer and clearly expressed a view not to return to Ireland, a liking for her school in London and indicated her fear of her Irish based father. Her father challenged any weight given to her views based on her age but the Court of Appeal upheld that her views were a relevant defence to her being returned to Ireland.
Ms Collins said although five is very young to have clear views on such a subject and this case must therefore be unusual.
“It is unclear from the judgment the weight that would have been given to this child’s views had they been at odds with the views expressed by her older brother who also wished to stay in London. The court has, however, indicated that in such disputes children’s wishes, while not a definitive factor, should be heard more frequently”.
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