Wardship as a tool to seek a return

Tue 13th Nov 2018

It is very usual for parents to travel abroad with their children but what are your options if those travel plans go awry once your children are in that foreign jurisdiction.

In a recent case of mine, a family had travelled to Africa to visit their respective extended families. Whilst abroad the mother decided to separate from the father and to remain abroad with their younger children against the father’s wishes. The mother agreed the eldest child would return to England with the father.

Despite the country being a signatory of the 1980 Hague Convention on the Civil Aspects of International Child Abduction the decision was taken to bypass the convention and instead to make an application to the courts in England and Wales. This was on the basis of the children being British nationals and their habitual residence being in this jurisdiction. The children were made Wards of the court and an order was made directing the mother to facilitate the return of the children to this jurisdiction.

The mother, when served with the British order, did not return the children to England and Wales as directed but instead sought the assistance of the court in the foreign jurisdiction seeking an order from them which allowed her to remain there with the children. Armed with orders of the High Court, the father appeared before the foreign court and challenged the mother’s application. The court, upon having sight of the British Order, directed the immediate return of the children to England and Wales.

In another case of mine the parents travelled to an EU country (both of them being nationals of that country who resided in England with their child) in order to attend a court hearing granting the father parental responsibility for the child. The mother following the hearing but before the judgement of the court had been formalised, wrongfully retained the child in that country. The child was again made a Ward of the court and an order made for the return of the child to England and Wales. The mother complied with the order and returned with the child.

You cannot plan for every eventuality and no one ever expects a family holiday to end in this way but if it does happen, as can be seen from the above examples, all is not lost. Making a child a Ward of the court can hold favour with foreign courts but also often the abducting parent will comply with the order.

The important thing is to seek legal advice from a specialist solicitor in England and Wales as swiftly as possible and before taking any legal action in the foreign jurisdiction. The action that is taken will depend on the individual facts of each case including the country the children are in, how long they have been there and what discussions took place before and during the trip.

CONTACT SIMRAN

If you would like more information or advice relating to this article or a Family law matter, please do not hesitate to contact Simran Gupta on 01727 798065.

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