Part one – Child Abduction
On Monday 26 September Jennifer Moore met with the Dutch International Child Abduction Lawyers’ Association in Amsterdam (DIAL).
Jennifer attended the meeting in her capacity as a member of the UK Child Abduction Lawyers Association (CALA) along with the Chair and a handful of other members of the committee.
The purpose of the meeting was to exchange ideas and engage in discussions in respect of the differences and similarities in the procedures in our respective jurisdictions.
Matters concerning international child abduction, inevitably, involve more than one jurisdiction.
Example scenario
The Mother, Didi, is from Holland. The Father, Stu, is from England. Didi and Stu are married and they live in Holland with their two children Tommy (age 5) and Angelica (age 7). Didi’s parents (Tommy and Angelica’s granny and grandad), Charles and Camilla, also live in Holland.
Charles and Camilla have lived in Holland all of their lives. Charles has not been outside of Holland before, and is afraid of flying. Charles and Camilla cared for Tommy and Angelica after school on Mondays and Wednesdays every week, and also took them swimming every Saturday, after which the children would stay over at their house. Meanwhile, every Saturday, Didi and Stu went to their local bar and 80’s nightclub.
On 25 December 2015 Stu abducted Tommy and Angelica; he has flown with them to England, where he has been staying with them in a suite in the Langham hotel in London. He has enrolled Tommy and Angelica in a local international speaking school in central London.
It is now 10 January 2016.
Seeking legal advice
Stu
Stu has come to see Jennifer in England to ask if he can apply for a Child Arrangements ‘Lives With’ Order to regularise his position in this country. He would like the Order to confirm that the children are not to be removed from residing in the Langham hotel without his consent or further Order of the Court. Stu has told Jennifer that he has an Order from a Dutch Court which awarded him ‘sole custody’ and means that under Dutch law he was entitled to remove the children from Holland and change their schools without the consent or knowledge of Didi.
Charles and Camilla
Charles and Camilla have come to see Max, an Advocate in Amsterdam. They are extremely concerned for the children’s welfare; they do not believe that Stu is capable of looking after Angelica and Tommy properly and have serious concerns for their immediate safety. They tell Max that Stu uses drugs excessively (and believe he is in the Langham with a London drug lord) and is a bad influence on their daughter Didi. They want to know what their rights are, and if they can obtain a Court Order (in either England or Holland) that the children are returned to Holland, and also if and how they can eventually get an Order which provides the children live with them, with generous access to Didi. They believe Stu should only see the children in a supervised setting.
Didi
Didi is beside herself; she has contacted the police in Amsterdam and they have told her this is a civil matter and she needs to see an Advocate or contact the central authority in Holland to help her to get a solicitor in England. She says she wants the children returned to her care immediately, she is concerned they are missing school, missing their grandparents, their friends, swimming clubs and all of their other activities and features of their settled life in Holland. Eventually Didi is able to see a solicitor, Che, in England, the details of whom are provided to her by the International Child Abduction and Contact Unit (ICACU; the central authority for England and Wales). Didi explains that when the children were babies Stu obtained a custody Order in Holland; they were going through a difficult time and the child welfare services in Holland thought she was a danger to the children. She has a copy of the Order and an English translation.
Who can help whom?
- Jennifer’s advice to Stu
Jennifer can contact another international child abduction lawyer in Holland for assistance.
If Didi did not have any rights of custody when Stu removed the children from the jurisdiction, it may be difficult for Didi to utilise the 1980 Hague Convention to seek a return of the children to Holland, although she may be able to rely on ‘inchoate rights of custody’. The first step will be to find out what the Dutch Order means in Holland and whether she had legal rights of custody at the time of the removal.
Jennifer will need to ascertain what Order Stu has, and what it means for his custody and Didi’s custody.
2. Max’s advice to Charles and Camilla
If Angelica and Tommy remain in England, Charles’ and Camilla’s Advocate in Holland can speak to Jennifer or another international children’s lawyer in England in respect of commencing proceedings in England.
The Courts in England do sometimes make Orders about children who are not present in the country; the Court can use its powers under the inherent jurisdiction to make a child a Ward of Court and Order their return to England. If the child is a British Citizen, the Court may apply the Parens Patriae doctrine to make Orders about that child, even when they are not within the country. Most other jurisdictions do not exercise these far reaching powers, but Charles and Camilla can explore what options they do have in Amsterdam.
In England, grandparents do not have automatic leave to apply to the Court for an Order in respect of their grandchild, they need to obtain a Judge’s permission to make an application for a Child arrangements Order.
The Advocate Charles and Camilla have seen in Amsterdam will be able to advise them on what rights they have in Holland as grandparents, and advise them on the applications they could make to the Court in Holland, in respect of Tommy and Angelica. They will be able to tell them what Orders, if any, the Court can make if Tommy and Angelica return to Holland, and whether the Court in Holland would make any Orders in their absence.
3. Che’s advice to Didi
If your case has an international element, speak to the experts.
Having a network of international family lawyers in other countries, who deal with matters in relation to children and financial matters is invaluable to ensure that the approach to every case is not one dimensional, but global, looking at matters from all sides, exploring all options and ultimately litigating in the best jurisdiction to achieve the best possible outcome for the client.
This is the first in a series of articles that will deal with cases with an international element, where cooperation and links to foreign lawyers could assist and benefit our clients. Subsequent articles will focus on international child contact dispute (after an agreed or accepted move of a child to a foreign jurisdiction) and financial cases with an international element.
This is a very short and simple example to show how working together with lawyers in other jurisdictions is very often crucial in cases of international child abduction and international child contact and custody disputes.
How does this impact you?
If, for example, the Order were not one giving Stu joint custody, but an Order for shared care, it may be that Didi can seek to enforce the order and obtain a return Order under the Brussels II Revised EU Regulation.
Che will be able to contact Max or a DIAL colleague in Amsterdam to seek their assistance regarding the Order Didi has produced, and what this means in Holland.
Che will ascertain as soon as possible whether Didi had legal rights of custody at the time Stu removed Angelica and Tommy. If she did not, he will need to consider whether she was exercising sufficient ‘inchoate rights of custody’ to enable her to commence 1980 Hague Convention proceedings.
