International child abduction
The new generation of migrant workers and the relaxation of the international, particularly European, borders has meant a greater number of cases involving international child abduction. The law that governs this area is the Hague Convention.
In simple terms any child that is removed from the country in which they are habitually resident without permission they should be returned to that country immediately they are discovered so that their own court can decide where they should live. The law is very strict in this area and our courts do not like to interfere with the family courts in other parts of the world.
As with any law there are a few defences.
The first defence is if the parent knew that the child was going to be taken but did nothing to stop it. Secondly, you might try to argue that the children would be in grave danger if they were returned to their native home. Thirdly, and some would say most importantly, if the children have strong objections to returning to their home country or the parent with whom they were living then this might be a defence. The problem with this is that you have to prove that your child has sufficient maturity in order to make that decision. When the Hague Convention was first drafted the legislators did try to set an age, between 12 and 16, where a child could be deemed to make his/her own decision but this was rejected because everyone thought that it depended upon the individual child and their level of understanding. With children under 10 it is very difficult to say whether they can make up their own mind independently. I however know some 9 year olds who are more than capable of telling me what they want.
The final defence is that if you can prove that a child has been settled in the UK for over a year you may be able to prove to the court that they are therefore habitually resident in the UK and the UK should decide with whom they should live.
The problem with all of these defences is that even if you can prove one of them a Judge still has the discretion to send a child back. Our High Court Judges are very keen to make sure that they are not doing anything which might be seen to undermine the legal system of another country. This can be a very bitter pill to swallow for many people who run to the UK believing that our judicial system always puts the welfare of the child first. This is not the case in Hague Convention Hearings and there are many such as ourselves who argue that perhaps it should be.
All countries which are members of the Hague Convention should decide cases in exactly the same way. In other words decisions should be made quickly and children should be returned to their home country without much delay. This unfortunately, is not always the case.
The Hague Convention is a very specialist area of law and not every family law solicitor would have the ability to deal with such cases. Given that proceedings and decisions take place so quickly it is important that you make sure you instruct a solicitor who has intricate knowledge of this law and will defend your position in court as far as they possibly can. Even though the welfare of the children is not paramount in Hague Convention cases it is always important to approach any case from a welfare point of view and hope that a Judge will use their discretion to allow the children to remain in the UK if it is right that they should do so. At Rowberry Morris we have solicitors who have experience of these cases and who have successfully argued the case on behalf of the wishes and feelings of the children. We have links with specialist interpreters and translators who will act quickly to provide us with documents from international proceedings and we always believe that it is worth defending a client even though what they have done in running to this country may not have been right in the eyes of the law. After all everyone is entitled to a defence. Public funding is available but is subject to a means test. We remain one of the few firms in Reading that still undertake public funding work in this area.
