The lockdown caused by the coronavirus pandemic has seen an increase, not only in divorce but in parental child abduction. When a married couple is composed of two different nationalities and divorce rears its head it is not uncommon for one parent to decide to go back to their country of origin and take their child or children with them. Needless to say, this poses considerable legal issues and can lead to the arrest of the absconding parent. There can be many reasons a parent takes such extreme action, including their belief that their child is in an unsafe environment. Often warring parents are both devoted to their children but allow their feelings for the former spouse to cloud and impair their judgment.
Daniel Theron, a partner, commented "in the event of marriage breakdown, the permanent removal of a child or children under the age of 16 years to another country without the consent of the other parent or a person with parental authority or a parental order is strongly discouraged, regardless of the reasons. It contravenes the Child Abduction Act 1984 and is, therefore, a criminal offence" Daniel further commented "if exhaustive efforts have been made to contact the other parent or person with parental authority without success, this may be viewed as a mitigating circumstance but this cannot be presumed. There are other limited circumstances that the court may consider in the event of illegal removal of a child".
Children have the right to be heard and their perspectives considered, particularly when the consequences of legal proceedings may have a significant effect upon them.
A child's rights are enshrined in is enshrined in legislation, as follows, Article 12 of the United Nations Convention on the Rights of the Child (UNRC) 1989, and in England and Wales, The Children Act 1989, which provides a checklist with a view to the welfare of children in these circumstances - a list of factors which a judge can consider when deciding what is in the child's best interests. The courts will consider the child's feelings, commensurate with their age and perceived understanding. However, their views will be subject to the court's view of the child's best interests which must come first.
The highly sensitive factors involved in decisions made on behalf of children in divorce cases make this area one of the most controversial for the courts to deal with. The issue was addressed in a Ministry of Justice Report first published in June 2019 - "Assessing Risk of Harm to Children and Parents in Private Law Children Cases". The courts take an ultra-cautious approach to all child-related issues and frequently utilise the support and expertise of Children and Family Court Advisory and Support Service. (cafass) as part of the decision making process. Cafass independently advises the family courts on issues of child safety, navigating through the coercive behaviour of some parents and the attempts at parental alienation by others. Cafass assists in assessing the best interests of children, often by taking an in-depth history of the family and making sure that a child's feelings and wishes are heard.
It is generally agreed by the courts and the families that children should have regular contact with both parents; the days when children were arbitrarily shared out between the parents are thankfully behind us. Since it is obvious that a child cannot live in two places at once fresh solutions have evolved and the various forms of custody are as follows:
- Sole custody, only one parent has physical custody of the child. The other non-custodial would be expected have regular visitation rights.
- Joint physical custody this arrangement involves the child being cared for by both parents, in turn, for equal amounts of time and both parents are custodial parents.
- "Bird's nest" custody this amounts to joint physical custody whereby the child resides in one place and the parents take it in turn to visit and look after the child, ensuring that the child does not experience the disturbance of having to move back and forth between their parents.
- Split custody an arrangement whereby one parent has sole custody over some children, and the other parent has sole custody over the remaining children.
- Alternating custody if the parents live a considerable distance apart a child will live one parent for a period of time and an alternate amount of time with the other parent. For the duration of the child's residence that parent will have sole custody due to the impractical distance of the other parent.
- Third party custody is where a person other than the child's biological parents has custody of the child.
The lawyers in Giambrone's family team have extensive experience in dealing with cross-border divorce and child arrangements. This often acrimonious aspect of divorce requires delicate negotiations. Giambrone's divorce lawyers' knowledge of the legal position in a variety of jurisdictions enables them to advise and guide parents through this complex legal area.
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