The very tragic case involving the two children of the late British man, Michael Simpson, raises important questions for British grandparents.
- Can a parent enter into a binding agreement or declaration to ensure their parents (the grandparents) care for their children should anything happen to them, as opposed to an estranged or absent surviving parent?
- If grandparents disagree with parents about the care of children, what can a grandparent do?
Michel Simpson was very sadly murdered in his apartment in Shanghai in China in November 2017. He was killed by Weiwei Fu, his estranged wife and mother of his two children, Jack (age 7) and Alice (age 6). Prior to Michael’s death he and Weiwei had reportedly separated and Michael’s parents say the children were spending most of their time with their father.
Jack and Alice are now living with their maternal grandparents in Nanzhang China, reportedly sharing a single bedroom with their cousin.
Jack and Alice’s paternal British grandparents, Ian and Linda, want Jack and Alice to live with them in England. They believe they can offer a better life and education.
It is reported that Ian and Linda have promised to maintain the children’s contact with the maternal side of the family in China, to continue to ensure the children learn Mandarin and to visit China once a year.
The maternal Chinese grandparents want Jack and Alice to continue living with them in China.
Ian has told the BBC that the Fu family “won’t let us see them…and won’t negotiate with us at all”. It is reported that the Fu family are demanding £60,000 in exchange for allowing Jack and Alice to live with their British grandparents.
The Foreign Office is offering support and assistance to the British Grandparents in navigating the custody battle through the Chinese courts. The outcome of the case is still awaited.
Key legal points for Grandparents
- The children are likely to be considered as being Habitually Resident in China and therefore the courts in China will have substantive jurisdiction or powers to make long term substantive decisions about the children’s welfare.
In international cases where children live in a country other than the UK, if there is a disagreement in relation to the arrangements for their care (between two parents or grandparents and parents) it is essential to take legal advice from expert family solicitors with an international practice, such as Rayden solicitors, who will be able to advise you on which courts have jurisdiction and the potential for a dispute about that issue. In cases where families are expats and or live between two or more countries, this is extremely important.
- Parents cannot enter into a binding will/declaration appointing their own parents as Guardians and exclude the powers of the British courts to make custody orders under the Children Act where there is jurisdiction. This means that a mother who has separated from the father of her children many years ago, in circumstances where the children have not maintained contact with the father, cannot make a Will or enter into an agreement ensuring that if anything happens to her, her parents/ the children’s grandparents will have custody or residence of the children, and the father shall not. Whilst it is possible to appoint a guardian, it is not possible to exclude the court’s powers to make an order for custody (now a “Lives With” order).
If such a dispute arose the court would make a decision about who the children should live with based on the best interests of the children. Their welfare will be the court’s paramount consideration.
- A grandparent will ordinarily require permission to make an application to the British court for a custody (“Lives With” order) unless they have lives with the children for a period of three years or more. The court will consider the best interests of the children and their welfare when deciding whether to give leave to the grandparent to make their application.
 Subject to the domestic legislation in China