International Family Law

Evolve Family Law are delighted to highlight that some good news has come out of Europe. We thought we would post a blog about the EU regulations to help protect children and parents involved in cross border child custody and access disputes. After all, it is not often nowadays that anyone has anything positive to say about the EU and its directives and regulations. Protecting children in cross border disputes On the 25 June, the Council of the EU adopted a revision of a regulation setting out rules on the jurisdiction, recognition and enforcement of decisions in: Matrimonial matters; Parental responsibility matters; Intra-EU child abduction The council said that one of the main objectives of the revision to the EU regulation was to improve the current protection that EU directive gives to children in cases of cross-border children disputes, for example: Custody (nowadays referred to as residence or a child arrangements order in the UK ); Access rights (nowadays referred to as contact or a child arrangements order in the UK ); Child abduction. The focus of the new EU regulations is to ensure when resolving cross border children disputes involving more than one EU country that : The focus is on what is best for the child; Judicial co-operation between EU countries is faster and more efficient to make sure the child’s well-being comes first. It is anticipated that speedier court decisions will be made through abolishing the requirement for an exequatur (an intermediate procedure required to obtain cross-border enforcement). People often assume that EU law will not affect them and their families but statistically there are about 140,000 international divorces per year. It is reported that there are about 1,800 cases of parental child abduction in the EU. The number of international divorce cases rises each year as people become increasingly mobile because of work and travel opportunities. With the update of the Brussels IIa Regulation, the intention is that a child abducted by one parent from an EU country and taken by the parent to another country within the EU will be returned much faster to the country where he or she is used to living in. Top Manchester children solicitors have welcomed the new EU regulation but have issued a note of caution. UK families caught up in EU cross border disputes will only get the protection and assistance of the new regulation whilst the UK remains in the EU. Subject to Brexit, the additional protection may be short lived. That will not stop child custody solicitors from fighting to reunite parents and children caught up in cross border child custody and access disputes. The top tip if you fear child abduction or need to enforce a UK custody or child arrangements order across different border jurisdictions is to take early specialist child custody legal advice on your options and to act quickly. For information about child custody and access or child abduction please call us on +44 (0) 1477 464020 or email Louise Halford at louise@evolvefamilylaw.co.uk 

When it comes to choosing a family solicitor where do you start? Well there are many ways, from phoning friends and family, to scouring the internet or even picking up the phone and speaking to one of the family law firms that advertise on the back of buses or at hoardings at the railway station. Those may be some ways to choose a family solicitor but I suspect that using those methods you will not chose one that is necessarily right for you. Why it is so important to choose a family law solicitor that is right for you Getting divorced or taking part in children or financial court proceedings is stressful. It is still going to be tough, whatever family law solicitor you chose. However, the process will be easier if you find a family law solicitor you can work with and feel comfortable instructing. Some family law solicitors may be great academic lawyers but you do not feel able to talk to them and tell them about personal matters or tell them what you want.  Other family law solicitors may offer cheap price divorce and financial settlements but you may question how approachable they are and if you are getting the best service.  Questions to ask when choosing a family law solicitor When you chose a family law solicitor, you are likely to be working with them for some time so it is important to choose with care. I deliberately say ‘’working with’’ as a family law solicitor should not tell you what to do. Instead, they should talk to you about what information is needed, assess your legal options, and help you make informed choices, whether that is a referral to mediation, the commencement of court proceedings or an agreed financial settlement.  Who will you be instructing? That is not as stupid a question as it sounds. In some family law firms you may see a partner on the first meeting but not speak to them again as they will delegate the work to a junior solicitor or paralegal. That can be frustrating if you chose the firm based on the recommendation to an individual family solicitor or thought that the price quoted for the advice was based on an experienced senior solicitor carrying out all the work for you. Many family solicitors delegate work and normally it is in your interests that they do so, but you need to understand who will be helping you. Is the solicitor a specialist? Most people assume that a solicitor knows what they are doing but is your solicitor a specialist in family law. Do they do a bit of family law as well as property law and Wills? Nowadays professionals will specialise in one area of law. In large firms or niche family law firms, you will find solicitors that specialise in child law or child abduction or financial settlements or prenuptial agreements. You may not think that your situation is so complicated that you need a specialist but a specialist solicitor may be more efficient in resolving your legal problem or come up with potential solutions that you have not thought of. Has the family law solicitor provided the cheapest quote or lowest hourly rate? When it comes to choosing a solicitor the one who quotes the cheapest price for the job or the lowest hourly rate will not necessarily end up as the cheapest solicitor. The old adage ‘’ you pay for what you get’’ applies. If you chose a solicitor with a lot of experience they may quote a higher hourly rate than a junior solicitor may but they should be able to focus on the key issues and help you reach a speedy resolution, rather than end up in court proceedings. If you are offered a quote for the ‘’job’’ check there are no hidden extras such as court fees or VAT. Also, check to make sure what the quote covers. It pays to read the fine print in a price guide as if you are offered a fixed fee divorce does the quote cover meeting a solicitor or being able to ask questions, or will your instructions be processed online or via a call centre. How does the family law solicitor propose to resolve your case?  This question may sound like another daft question but it is not. If the solicitor talks of court proceedings as the only option then their ‘’can do’’ attitude may be appealing to you. However, court should be seen as the last resort. Court proceedings are expensive and no solicitor can guarantee an outcome. A solicitor, who takes a more measured approach and talks of the keys issues and how to compromise to reach a negotiated settlement, whilst still achieving your goals, may get the same result for you, but without the expense and trauma of court proceedings. Do you like the family law solicitor? Liking your family law solicitor is not an essential part of choosing your solicitor but it does help to either like or respect them. After all, you will be working with them, as a team, so you need to be able to talk to them about your personal and financial affairs and have confidence in them. If you like your family solicitor then it makes it easier to reach a children or financial settlement. That is because when they suggest a compromise or a solution you know you will feel comfortable discussing the pros and cons with the solicitor and can have an honest discussion about whether or not you would get a better deal by going to court. Remember though, however much you like your solicitor you are the one who is in charge. They may offer advice, support and guidance on your legal options but the choice is yours. For information about how Evolve Family Law can help you, please call us on +44 (0) 1477 464020, or contact us by email at robin@evolvefamilylaw.co.uk or louise@evolvefamilylaw.co.uk

Surrogacy reform is on the cards with Law Commission review on surrogacy There is nothing quite like welcoming a new baby into the world. As a children lawyer I have been privileged to help parents secure Parental Orders after they have had a child through a surrogacy agreement. I therefore know just how stressful the months leading up to the birth of the child are as well as the worry of how quickly a parent can secure a Court order. For many parents they couldn’t relax and enjoy their baby until all the legalities were sorted out. Surrogacy laws were first introduced about 30 years ago. Society and the medical options available to couples have changed over the years. Many parents, medics and legal professionals have concluded that the current surrogacy legislation, once thought to be ground breaking, is no longer ‘’ fit for purpose’’ and doesn’t meet the needs of the surrogate, the parents and, most importantly, the baby. Under current English law a surrogate mother is the legal mother of the child even if she has no genetic link to the baby. A Parental Order, in favour of the parents, can only be applied for after the baby has been born and various conditions have to be met, namely: The application must be made within six months of the child’s birth; The surrogate mother must fully consent to the Parental Order and must understand that she will be giving up parental rights; No payment should have been made to the surrogate mother save for necessary reasonable expenses. The Court can give retrospective approval to payments over and above reasonable expenses; There must be a genetic connection between the child and at least one applicant for the Parental Order; At the time of the application and the making of the order the child’s home must be with the person applying for the order; Either or both applicants must be domiciled in the UK There is a concern amongst professionals that current UK surrogacy laws and conditions encourages the use of international surrogates where, in some countries, there is less regulation and protection for all participants. The Law Commission reforms will consider changes to the law relating to: the legal parentage of the baby; the regulation of surrogacy including payments; the rights of the child to obtain information about their origin and the surrogacy arrangement; the rights of the surrogate, parents and child and how best to avoid exploitation in the surrogacy process. The Commission says that a report on proposed changes in the law will be available within a year. There will then need to be an impetus to get any recommended changes in current surrogacy laws into new legislation so that all involved in surrogacy arrangements feel that the law is working to protect them and the child. For advice on any aspect of children law please call me on +44 (0) 1477 464020 or email me at louise@evolvefamilylaw.co.uk

Child abduction: why it pays to get legal advice before you take children to or out of the UK For one mother there was a happy ending, all thanks to the Court of Appeal. The appeal judges decided to reverse an earlier Court’s decision that said two children should be returned to the USA whether or not their mother could get a visa to re-enter the States. The family Court appeal made all the difference. The family Court appeal centred on whether two children, age 5 and 3, should return to their country of birth, the USA, at their father’s request under a Hague Convention Court application. The mother had taken the children to England, the country of her birth, without a USA Court order or the father’s agreement, after marriage difficulties made her conclude that she and the children should live in the UK. If the mother had realised the complexity of the immigration issues facing the father and herself she may well have thought twice and not taken the children out of the USA. For the children immigration wasn’t a problem as they had dual citizenship, having been born in the States and having British citizenship through their mother. The children’s Pakistani father was classified as an illegal over-stayer in the USA and if he decided to come to the UK to challenge Court rulings or to see the children he faced not being able to get back into the States, a country that he had called home from the age of 12. For the mother, as a British citizen who had entered the USA on a temporary visa and married the father in the States, it was unlikely she would be able to get a visa to go back to the States. The situation of both parents was stark. If the father ‘won’ his Hague Convention application and the Court ordered the return of the children to the States to enable the USA Court to decide on what was in the children’s long term interests, then the mother was unlikely to get a visa to go back with them. The High Court ruled in the father’s favour and the mother felt she had no alternative other than to appeal. The Court of Appeal then faced the dilemma of deciding if the children would be exposed to a grave risk of harm if returned to the USA under the Hague Convention. The mother ran this argument as there are limited defences available to try and stop a Hague Convention ordered return. The Appeal Court concluded that the children could not be removed from their primary carer despite the fact that the mother had created the situation that the family found itself in and even though the Appeal Court decision made contact between father and children problematic given his precarious immigration status in the USA. The family circumstances may appear unusual but as a child abduction solicitor I often have to investigate the immigration issues that arise after a child has been taken out of or has entered the UK and present the best possible evidence on immigration status and attachment. It is vital to do so as immigration status can be the key to the Court decision, as it was in this case as the children’s attachment to their mother as their primary carer, meant they would be at risk of harm in returning to the States without her. Would you risk it? The High Court decision, reversed by the Court of Appeal, shows just what a risk was taken. Sadly though there are no winners or losers in this family situation as the father now faces the same immigration dilemmas and difficulties in seeing his children. For advice on child abduction or children law please call me on +44 (0) 1477 464020 or email me at louise@evolvefamilylaw.co.uk

Child relocation: the effect on the family In the immediate aftermath of a parental separation it can feel devastating to not be there every night to read a bedtime story to your child or, if they are older, to help them with their homework. Imagine how much more difficult it is to come to terms with a separation if one parent announces their decision to move abroad with a child. It’s highly unlikely that the parent left in the UK will be able to continue to see the child each week, take the child to ballet or football practice or to be there as a taxi service after the first school dance. I may paint a vivid picture but that is the reality for the parents I represent in child relocation applications. As a specialist children and child abduction lawyer I am in the privileged position of meeting parents and getting a snapshot of their family lives. That’s necessary to help me gain a real appreciation of why a parent is desperate to move abroad with their child or how not only a parent but the child’s extended family will be effected if a child does move abroad. What happens if a parent objects to a move abroad? If one parent wants to move abroad and the other parent objects there are a number of alternatives: The parent can still move abroad – they just can't take their child with them unless they get the other parent’s agreement or Court permission; The parent could take the child abroad without agreement or Court order – that may amount to a criminal offence under child abduction law and ultimately could lead to the child’s removal from the parent; The parent could apply to Court for permission to take the child abroad to live or the other parent could apply to Court for an order prohibiting the child’s removal from the UK. Even after Court proceedings have been started it can sometimes be possible to reach an agreement over whether a child should move abroad. It is my job when representing parents facing an application for a child to live in a foreign country to weigh up the chance that the Court application will be successful, and if the prospects are high, to negotiate the best contact arrangements. How does a Court decide my child’s future? Whether the Court is deciding on whether your child should move to France or Bermuda or if the child should live with you or their other parent the Court has to look at what the judge thinks is in the child’s best interests taking into account a set of criteria known as the ‘’welfare checklist’’. When a judge makes the decision if a child should relocate abroad the child’s interests aren’t paramount as the Court has to consider the effect of granting or refusing the application on both parents. That is why it is so important for a solicitor to know all about family life and not only what the child will gain and lose by a move abroad but how the Court decision will impact on each parent. A parent refused permission to take their child to their country of origin and where all their extended family still live may find the Court refusal more difficult to accept than a parent who wants to move for lifestyle choices or because they have found a new job based abroad. No two parents are the same and even if the parents of two children in different families have the same amount of contact with their child each week the emotional effect of a move on the parent left behind can be very different; one parent may quickly adapt to travel abroad to see the child and the other may become depressed and unable to come to terms with the Court decision. Although the Court is focussed on the child’s needs as a lawyer it is my job to not only to look at the Court criteria in relation to the child but also the impact of a decision on the parent I am representing. That’s because if either parent is devastated by the Court decision and can't come to terms with the ruling then it is bound to have a negative impact on the child. That is something that a Court needs to consider when deciding whether it is in a child’s best interests to move out of the UK. What next? If you are a parent contemplating a move abroad with a child or a parent facing a potential Court application then the best option is to get legal advice. The sooner a parent gets specialist advice on the pros and cons of making or opposing a Court application and what steps they and their lawyer will need to do to successfully get permission or to oppose an application the better. It is like many things in life: tomorrow belongs to those who prepare for it today. For advice about taking a child abroad to live or for help in opposing an application please call me on +44 (0) 1477 464020 or email me at louise@evolvefamilylaw.co.uk

The question of whether a mother’s decision to relocate from Australia to England with her two young children amounted to child abduction has been the subject of a Supreme Court ruling called Re C. The Court decision is of interest as it highlights the fact that often the decision to move from one country to another with children isn’t straightforward and therefore it isn’t easy to say what amounts to ‘’child abduction’’ and when ‘’habitual residence’’ changes from the country of origin to the country of relocation. In re C, two parents were living in Australia with their two children, the marriage ran into trouble and the father agreed that the British mother and the children (who had Australian citizenship) could take a trip to the UK for 8 weeks. The father then agreed, by email, that the trip could be extended to up to a year. During the year the mother decided that she wanted to remain in the UK with the two children. This decision resulted in the father applying under the Hague Convention for the children’s return to Australia. The legal question was whether the children remained ‘’habitually resident’’ in Australia as, on the father’s case, their stay in England was only temporary. If the Court ruled that the children remained ‘’habitually resident’’ in Australia the Hague Convention rules would be applied and the children would go back to Australia .The long term decision as to which parent the children should live with and in what country would then be decided by the Australian family Court. The Australian Court would have the option to rule that the children should stay in Australia with their mother or father or grant an application by the mother to return to the UK with the children. The mother resisted the father’s High Court application that the children should be returned to Australia arguing that the children were now habitually resident in the UK so the UK Court couldn’t apply the Hague Convention rules and summarily return the children to Australia for the Australian family Court to decide on the children’s future. The High Court agreed with the mother, the father appealed and the Court of Appeal agreed with the father ordering the children’s return to Australia. There was a further appeal to the Supreme Court. The Court held that the father’s application under the Hague Convention failed because the children had become ‘’habitually resident’’ in the UK and therefore the English Court could decide where the children’s future lay. Not all of the Supreme Court judges agreed with the leading judgment and a reading of the Court case and the various judge’s views shows just how finely balanced and complicated the decision was. The decision on whether the children were habitually resident in Australia or England all came down to when the mother formed her intention to remain in the UK with the children. Was it a case of a mother who was struggling to decide what to do and where to live with her two young children or a case of planned child removal by tactically getting the husband to agree to a one year stay in England? Why does the case matter? If the children had retained their habitual residence in Australia then under the Hague Convention the UK Court would have had to return the children to Australia using a quick summary procedure and without looking at the merits of either parent’s case namely that the children would be better off being brought up in Australia or the UK. Once back in Australia the mother might have found it harder to argue that the children should return to the UK with her. However as the Court has ruled that the Hague Convention doesn’t apply the UK Court can now carefully decide what is in the children’s best interests: to live in England with their mother or return to Australia with their father and the sort of contact time they should spend with the parent who isn’t going to be caring for them on a day to day basis. What does this case mean for a parent travelling with children to the UK? For the parent who has come over to the UK with their children it shows the depth of analysis of the legal concept of ‘’habitual residence’’ and the pouring over of detail and, in the case or Re C, the review of correspondence to try to determine when the children lost their habitual residence in Australia. Despite the Re C ruling many parents should be wary of the risks of arguing that their children have become habitually resident in England and thus the Convention doesn’t apply. That is because if the UK Court rules against them on the legal definition of habitual residence or on the facts of their case they start on ‘’the back foot’’ if they have to return to the country they departed from for that country to rule on their children’s long term future. The dilemma remains – do you apply for permission to take a child to live abroad in the country in which the child lives and risk Court failure or risk travelling abroad and the Court ruling that the child’s habitual residence remains the country of origin thus forcing a Hague Convention return and a more challenging Court application in the country of origin. What does this case mean for a parent agreeing to their children going abroad with one parent for an extended period? It may mean that if the parent receives legal advice they will be less likely to agree to a child going abroad for an extended holiday as if their child is at risk of losing habitual residence the Hague Convention won't apply thus making it a lot harder to recover children from abroad. The dissenting Supreme Court judge’s views show just how difficult it is to define the concept of ‘’habitual residence’’ and how easy it is to fall foul of child abduction laws and conventions. As a child abduction lawyer the case of Re C shows just how finely balanced Court decisions can be and the importance of parents taking legal advice before they take their children abroad or agree to an extended trip abroad so that they make informed decisions. For advice on any aspect of children or child abduction law please contact us. [related_posts]

When most of us exercised our right to vote on Brexit we thought long and hard about the financial pros and cons of exiting the European Union and made a considered vote on what we thought was best for our families and the country. At least that is what my friends and family tell me they did. As a specialist children and family lawyer I also speculated on how a vote to leave the European Union would affect family law in England and Wales. I suspect that issue wasn’t high up on other people’s and politician’s agendas when voting on Brexit. As the European Union (Withdrawal) Bill makes its way through parliament and the House of Lords it is only now that some politicians and peers are flagging up the post Brexit intricacies and complexities of Britain fully or partially divorcing itself from European family law and the potential impact on British families if they get divorced, try to enforce UK family Court orders in European countries or attempt to recover children taken abroad to EU countries. Many will assume that Brexit will only affect a tiny number of separated families but there are said to be 140,000 international divorces and 1,800 cases of abduction of children within EU countries each year. I suspect those statistics don’t reveal the full extent of divorcing families international law connections as so many British couples now own a holiday home in Spain or a gite in France and so need to know that, on divorce, family Court orders made in UK Courts can be implemented quickly and economically in European Union countries. I have to confess that I don’t often read speeches delivered in the House of Lords but a speech given by Baroness Sherlock on the second reading of the Withdrawal Bill caught my eye: https://www.theyworkforyou.com/lords/?id=2018-01-31c.1531.0&s=speaker%3A24982#g1580.0 Her example family of a German man married to a British woman is one that we are all familiar with, all we need to do is change the family names and perhaps the European country where the husband or wife originated from and it could be a member of your family or work colleague or neighbour. It is putting names to the statistics of international divorce that really brings home the uncertainty that all families face in post Brexit changing family law. What does Brexit mean to my divorce, financial order or ability to recover my child from a European country? That after all is all that people are interested in if you are in the unfortunate position of separating from a husband or wife or have an existing Court order and there are possible European family law consequences. The short answer is that no one knows for certain but if changes aren’t made to the Withdrawal Bill then the UK would still apply EU family laws in Britain but British families wouldn’t get the current level of protection of EU family law and regulations that currently make Court jurisdiction, enforcement of family financial orders and recovery of children taken to EU countries relatively simple in comparison to a separation or divorce from a husband or wife from a non EU country or the abduction of a child outside of Europe. What can you do if you are going through a divorce now with an EU member to protect yourself or you have an existing financial or children Court order that you may need to enforce in an EU country? The first thing is to be aware that the law will change and the second thing to do is to get expert advice on what can be done now to protect you and your family or the steps you can take. Advising families in the changing family law world post Brexit is a challenge as no one knows how family law will be affected by Brexit but the most important aspect of my job, when advising on a divorce with an international aspect or on reviewing exiting family and children Court orders, is to flag up how both future negotiated family Court orders and existing orders could be harder to enforce or implement so that informed decisions can be taken on whether , for example , you want to retain the foreign holiday home and what protective measures can be put in children orders to ensure children are returned from EU countries. If you need advice on any aspect of family or children law please call me on +44 (0) 1477 464020 or email me at louise@evolvefamilylaw.co.uk  

An independent report on sharia law, commissioned by Teresa May when she was home secretary, reported last week on the operation of sharia law in England. The review was set up because of a concern that sharia law was being used as a second legal system in England and potentially sharia councils were discriminating against the women who use the councils to seek a divorce. https://www.gov.uk/government/publications/applying-sharia-law-in-england-and-wales-independent-review Sharia law and councils have no legal standing in England and Wales. It is often reported in the media that sharia law is operating in Muslim communities in England and Wales. It is also said that sharia ‘’courts’’ are becoming a parallel legal system in England and Wales. The report highlights the misconceptions that many people and the media have over sharia law and confirms the fact that sharia councils are not ‘’courts’’ and the members of the council are not ‘’judges’’ and don’t make decisions that are legally binding in English law. Why the concern then about the operation of sharia councils? The worry that led to the commissioning of the independent report into sharia councils was that about 90% of the people who seek help from the councils are women wanting a divorce. Women are the main users of sharia councils as married men don’t need to apply to the council for an Islamic divorce as they can issue a Talaq – a unilateral declaration of divorce. Some will question the need for government concern over women securing Islamic divorces through sharia councils but the worry is that women are reaching financial agreements with their husbands over the division of family assets in order to secure their husband's consent to an Islamic divorce or that when sharia council members are unofficially ‘’mediating’’ agreements with a couple they are applying Islamic law rather than English law to how family assets should be divided and adopting a very different role to a qualified family mediator. That puts Muslim women at a financial disadvantage when seeking a divorce, in comparison to their contemporaries using the British Courts. So why would a woman go to a sharia council rather than to a traditional family law Court to get a divorce and a financial settlement? The report states that many women resort to using sharia councils because they underwent Islamic marriage ceremonies and therefore aren’t legally married under English law. In general that type of marriage can put women under a real financial disadvantage in comparison to women who have participated in an Islamic marriage as well as a British recognised civil ceremony. When coming to its recommendations the authors of the report recognised that to stop women being disadvantaged by turning to sharia law and councils the women needed an alternative redress: the family Court system. The report therefore proposes a change in the law to require those going through an Islamic marriage ceremony to have a civil recognised marriage ceremony. That would then mean that married men and women would have to apply to the Court for a divorce and a financial order. The report also highlights the need to educate on the availability of Court remedies even if a couple have used a form of ‘’mediation’’ or arbitration at a sharia council. That is because the ‘’agreement’’ reached at a sharia council may not reflect the financial outcome that a wife would reasonably expect to receive in an English family Court or is unaware of the options open to her after reaching an agreement as part of the package of getting her husband's agreement to an Islamic divorce. No doubt it will take a while for the report’s conclusions to be digested and fully considered by all the interested parties and any agreed actions implemented through changes in the law. In the meantime what should you do if you think that your only option is to apply to a sharia council for a divorce? Take legal advice from a specialist family solicitor. The sharia council may not be the only option available to you and getting legal advice on what a family Court would award you in divorce Court proceedings could make all the difference to whether or not you decide to use a sharia council , and if you do , the outcome of how family money and property is divided. For advice about any aspect of family or children law please call me on +44 (0) 1477 464020 or email me at louise@evolvefamilylaw.co.uk