In a world in which many couples either have different nationalities or roots and extended family outside of the UK, it is increasingly common to find disputes concerning children that cross borders.
What to do if you are seeking the protection of the UK courts for a child who is no longer present in the UK:
The simple answer is that you are inviting the UK courts to accept jurisdiction on matters concerning your child. This might be to do with where he or she lives, what school he or she attends, and what contact/access he or she has with the parent with whom your child is no longer living.
Any of these issues are matters that the UK court might be able to help you with once you persuade them that they have the power to get involved. Without the courts having legal jurisdiction over your child, they won’t get involved. The UK courts may decide that it is not their business; in other words, they may decline jurisdiction.
How to know if the UK courts will accept jurisdiction in relation to your child
This will depend on a number of factors, the most important being where your child actually is, and whether he or she is physically present. Should your child be in the European Union, then the Council’s Regulation, known as Brussels II revised, will apply.
What does Brussels II Revised Say?
The most important section, is Article 8, which says that the court of a member state (the UK is currently a member), shall have jurisdiction in matters of parental responsibility (contact and residence) over a child who is habitually resident in that member state at the time that the court is seized, which is when you apply.
What Does Habitual Residence Actually Mean?
This topic has caused a lot of argument and litigation in the courts over many years. There are many previous cases (authorities) on this issue. For example, the question of whether your child has ever lived in the UK, or stepped foot in the UK, or if he or she is part of a family unit in the UK and is being prevented by the other parent from joining your family unit, are all relevant considerations in deciding ‘habitual residence’. Without habitual residence, its almost certain that the UK courts will decline jurisdiction.
There are lots of exceptions to the general rule of Article 8 as you might expect. These exceptions include circumstances where you may have previously consented to another jurisdiction (Article 12) or whether another jurisdiction is in a better position to hear the case (Article 15). A lot depends on the facts of your case.
If the UK courts accept jurisdiction, what power does the UK court have to help you if your child is in another country?
This largely depends on which country your child is in. There are limits to how far the UK can enforce its own orders. However, once the court has made an order, the British Embassy in foreign countries are far more likely to be of assistance.
Child abduction cases if your child has been taken out of the jurisdiction
The UK is a signatory to the Hague Convention. If your child is located in a country that is also a signatory to the Hague Convention, this will be a starting point. All EU countries and many other developed countries are signatories to the convention. Over 70 countries are signatories, but this also means that there are 120 who are not.
If your child is not in a Hague Convention country, the country may still have an individual arrangement in the UK. For example, Pakistan has a Pakistan Protocol, which isn’t too dissimilar from the principles of the Hague Convention.
If you have a dispute concerning your child who is in another country, an international child abduction case, or similar, and you want the help of the UK courts, the principles in this guide will help you decide if the UK courts can help. Once the UK courts accept jurisdiction, there are lots of legal questions on whether or not the UK courts can enforce any order it makes against another country’s judicial system.
It can be a complicated issue, but if you stick to the basic principles as set out in this guide, you should, hopefully, be able to find an answer as to whether or not the UK courts can help you. Here at St Pauls, we are highly experienced in dealing with child abduction cases across jurisdictions, so please do get in touch to find out how we can help with your case.