Family Child

BBC News has reported that “thousands of knives and sharp objects are being confiscated annually at London family courts”. Figures disclosed to the BBC by the Ministry of Justice in response to a Freedom of Information request show that 86 knives with blades longer than three inches (eight centimetres) were seized in 2018-19, having risen from 18 a year earlier. Almost 4,000 shorter blades were found in 2018-19. Boris Johnson has promised the introduction of domestic abuse legislation that would offer further protection for victims.

I was recently involved in consultation of abduction proceedings where the child was in other jurisdiction for a number of years with both parents consent and now the High Court order was made for the child to live with her mother in the UK . However, this could not happen yet due to housing issues and no one know precisely when and how these issues would be resolved.

The High Court should be more proactive in transferring matters to the county court, for starters: two under legal aid parties wasting the High Court’s time, when this should always have been a county court matter.

If you have a child arrangement order which states the child will live with you, you can take them out of the country (on holiday for example) for 28 days without the permission of anyone else with a parental order. However, the child must still be made available for any contact time stated in the order with the left-behind parent.

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty designed to provide the quick return of a child who has been abducted to one country, to their country of habitual residence. The Convention is designed to preserve the child arrangement orders made in the country of the child’s habitual residence, to prevent parents seeking other orders from more ‘sympathetic’ countries.

Ninety-eight states are parties to the convention; the latest to accede were Pakistan and the Philippines in 2016.

Tipstaff orders

Time is of the essence in these cases so it is important that we are aware of the necessary procedure to anybody needed legal assistance and on the procedures for obtaining such orders.

This is the situation happening to lots of immigration families, holders of dual or more nationalities (passports).

As per above case, Lola’s, age 3, parents separated two years ago and with both parents consent Lola has been left to live with grandparents in other country. During separation, Mother has run away from abuse of the Lola’s Father and was relocated with help of the charity to another city. Now after 2 years Father applied to the High Court for the help to return of Lola. Mother’s documents have been taken by the tipstaff in June 2019. During lengthy proceedings the Mother made serious allegations against the father. All of the allegations were rejected by the High Court judge and a finding was made that the Mother was fabricating allegations to frustrate contact. Ultimately, the High Court judge ordered that Lola should live with her Mother in the UK to be able spend time with Father.

Types of Available Orders

As mentioned above, all tipstaff orders are made using the High Court’s inherent jurisdiction. The tipstaff is the enforcement officer for all orders made in the High Court. There is only one tipstaff but he is assisted by two assistants as well as the police and court bailiffs when appropriate.

Collection order: This is used in situations where the child’s whereabouts are known but the respondent will not return the child to the applicant in breach of an order to do so. The tipstaff will collect the child and place him or her in the care of the applicant, another named individual or the local authority.

Passport order: The court can also make an order requiring the surrender of existing passports or preventing the issuing of a new/replacement British and yes, foreign passports. This is require that the tipstaff seize passports of potential abductors and for the child where abduction is feared but the court must be clear that this is necessary to locate the child rather than it being used as a means of exerting pressure on the adults in the situation. Later in proceedings this type of order is of assistance if an abducted child is returning to the UK as it allows the tipstaff to meet with the child and abductor on re-entry to the UK and to seize passports to prevent further or continued abduction.

You might say-they cannot seize passports of other countries: the court may also make an order for the surrender of a foreign passport (Re A-K (Foreign Passport: Jurisdiction) [1997] 2 FCR 563).

For obvious reasons, the British courts are not able to prevent foreign passports being issued but it is possible to request, via the relevant embassy, that a replacement passport is not issued.

Location order: The location order, as you may expect, allows the tipstaff to locate the Child. The tipstaff can arrange for the location order to be served on any person or organisation who he reasonably believes may know the child’s whereabouts. That person is then under a legal duty to disclose any information that could lead to the identification of the child’s whereabouts.

The location order was very concisely explained in Re HM (Vulnerable Adult: Abduction) [2010]:

“Thus orders can be made against public authorities (for example, Her Majesty’s Revenue and Customs, the Benefits Agency, the DVLA, local authorities or local education authorities, etc, etc) requiring them to search their records with a view to informing the court whether they have any record of the child or the child’s parent or other carer. Similar orders can be directed to telephone and other IT service providers, to banks and other financial institutions, to airline and other travel service providers – the latter with a view to finding out whether the missing child has in fact left the jurisdiction and, if so, for what destination – and to relatives, friends and associates of the abducting parent. In appropriate cases, though this is usually confined to relatives, friends and associates, the court can require the attendance at court to give oral evidence of anyone who there is reason to believe may be able to provide relevant information. Compliance with such orders can, where appropriate, be enforced by endorsing the order with a penal notice and then, in the event of non-compliance, issuing a bench warrant for the arrest and compulsory production in court of the defaulter.” (paragraph 36).

Lord Justice Munby goes on to clarify that this power to obtain information from a third party does not require that person to be complicit in the abduction and can apply to a “mere witness” who may assist (paragraph38).

A location order may specify that the tipstaff seize and retain travel documentations including the child’s passport. The tipstaff will retain these travel documents until the location order is discharged or until further order.

Port alert: The location order and collection order automatically contain a port alert. Although commonly referred to as one of the tipstaff orders, a port alert is actually implemented by the police rather than the tipstaff himself. (A court order would be required for a child aged 16-18.) Once the police have been informed of an alleged attempted abduction, a port alert is issued notifying all other police forces and immigration officers of the child’s details. The child’s details are placed on the Child Abduction Warning List.

Procedure

The procedure for applying for a free-standing port alert is set out in Practice Direction (Children: removal from Jurisdiction)[1986]. If a port alert forms part of a location order or a collection order the tipstaff will often alert the authorities. If a port alert is sought without a court order then contact should be made with the National Ports Office based at Heathrow Airport (0207 230 4800).

As mentioned above, all tipstaff orders and therefore any applications must be listed before a High Court judge. The court will always endeavour to accommodate genuinely urgent applications. If necessary, applications can be dealt with by telephone.

It is important that the tipstaff is immediately informed of any potential applications as the court will liaise with the tipstaff about appropriate orders and may even request the tipstaff’s attendance at court.

As with all orders, it is important that the provisions for service are complied with. The President of the Family Division has recently highlighted that if the order provides for service by the tipstaff it is not sufficient for the documents to be sent by the solicitor in the post: see Olaribiro v Shoyemi [2014].

Finally, a warning about the importance of ensuring that any tipstaff orders are clearly worded. This issue has recently come to light in a case before Mr Justice Holman called Taukacs v Taukaca [2015] where a mother wrongly suffered the “degrading and humiliating experience” of being removed from a flight to Spain and held in custody for approximately 42 hours because of a misunderstanding by the police implementing a tipstaff order. This highlights the importance that any tipstaff orders are clear to avoid such difficulties.

For a more detailed discussion regarding child abduction, or to book an appointment with a member of our family law team, please call us now on +44 7594 197814.

Family Divorce

New divorce laws faster and simpler process

Under the existing law one party must allege that their spouse has committed adultery or party must claim that their spouse has behaved in such a way that it cannot be reasonably be expected to continue to live with them.

So, the divorce is based on fault, it can lengthen the whole process and potentially lead to a more severe family breakdown and ‘blame game’ between couples.

Within the new divorce laws, one party only needs to state that their marriage has broken down irretrievably.

Nonetheless, changing the law poses many uncertainties but would undoubtedly bring favourable implications for the future: provoking a more amicable split and preventing children from being exposed to the damaging impact of ongoing conflict between their parents both during the divorce and afterwards.

FINANCIAL PROVISIONS

There are many elements which may change how a divorce can affect your family home or pension. Not all marriages will require you to formally divide your home or pension. It is specifically dependent on your circumstances.

Our family law team can conduct negotiations on your behalf and draft the agreement in a way that minimises the risk of the court, in the event of relationship breakdown, departing from the agreed terms. We can advise you also on the benefits of entering into a post-nuptial or post-civil partnership agreement, and can negotiate and draft this for you.

We also can make an urgent applications to court – e.g. personal protection orders or prevention of asset disposal.

Contact us online or speak to one of our dedicated top family law solicitors on +44 7594 197814 for a free initial consultation. With our firm experience, our team will work with you to ensure this process runs as smooth as possible. We can provide you with clear, focused advice combined with a sympathetic understanding. In order to minimise the emotional and financial impact we will always act in your best interest in order to obtain the best possible outcome for you. All information you provide us with is treated with the utmost confidentiality.

Our first meeting is without charge, giving you the opportunity to call upon our knowledge and expertise before committing to making any decisions.