Children (Custody/Access)

Part of the debate – in Westminster Hall at 12:30 pm on 4 December 2007.

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Photo of Frank Doran Frank Doran Chair, Administration Committee, Chair, Administration Committee 12:30, 4 December 2007

I understand, and am fully aware of the requirements.

My constituent and his wife are a mixed-race couple. They married outside the UK but moved to my constituent's home city of Aberdeen some years ago and were habitually resident there. Some time ago, they had a child with a disability. The child was cared for by both parents. The mother left the matrimonial home, taking the child with her, without the father's consent. The father's view is that the child was abducted, and some six years later he still has no knowledge of the child's whereabouts.

Some months after the separation, the father received notice of an order made in an English court. He did not at that point become involved in the case, but made efforts to contact his wife and child, and at the same time sought advice on his position from Scottish solicitors. That process took some time. He was not able to contact his wife and it was clear to him that the Scottish solicitors were not really aware of the English legal position. He subsequently instructed solicitors in England and Wales, and applied successfully for legal aid.

My constituent was very specific in his instructions to his solicitors. He had done some legal research and become something of an expert in the law in this respect. In his view, his wife and child were domiciled in Scotland and his wife abducted the child of the marriage and took her to England without his permission as a guardian of the child. The information that he received from the English courts was that an interim order had been made. His first challenge was that it was made without his being given the opportunity to answer, and he instructed his solicitors accordingly. Secondly, he was of the view that the proper jurisdiction to deal with any dispute between him and his wife was the Scottish courts. The solicitors were instructed to challenge the jurisdiction of the English court and the vires of the order that had been made.

Several months were spent on the legal aid process, but eventually legal aid was granted, but only for involvement in residence and contact. It appears that the solicitors whom my constituent instructed did not raise the jurisdiction issues, and ignored them completely. Those matters are being dealt with separately by my constituent, but in the meantime he attempted to employ other solicitors. It is a common fact of life that solicitors do not want to take on a case that someone else has started, so it is difficult to find a new solicitor. That is exactly the situation in which my constituent found himself, so he decided to represent himself in the courts. From that time he has pursued the issue through the English courts. My constituent was recently advised—I heard this morning—that he has been refused leave to appeal to the House of Lords, so he has exhausted all his remedies in the English courts, and the case will probably go to the European Court of Human Rights.

While he was challenging the issue in the English courts my constituent began proceedings in the Scottish courts for divorce and for a residence order in respect of the child, or, failing that, a contact order. Initially, jurisdiction was not accepted by the Scottish courts because of the English proceedings, but that decision was overturned on appeal. However, the case was later sisted—a Scottish term meaning "suspended" or "put to sleep"—to allow the English court procedure to continue. The legal position in Scotland is that the courts cannot make an order for divorce unless they are satisfied as to the welfare of any child of the marriage. Clearly that was not possible for the Scottish courts in the circumstances and they effectively ceded jurisdiction to the English court, even though that jurisdiction was not fully tested in the Scottish court. The whole case, therefore, including the divorce, cannot be determined until the matter is resolved in the English court.

I want to pursue three issues with the Minister. They might seem technical, but they are extremely important to my constituent, and to the wider context as well. The first relates to an issue raised by my constituent—jurisdiction. The law is very clear. Section 41(2)(a) and (b) of the Family Law Act 1986 sets out the rules for court jurisdiction in relation to child custody:

"Where a child who—

(a) has not attained the age of sixteen, and

(b) is habitually resident in a part of the United Kingdom, becomes habitually resident outside that part of the United Kingdom in consequence of circumstances of the kind specified in subsection (2) below, he shall be treated for the purposes of this Part as continuing to be habitually resident in that part of the United Kingdom for the period of one year beginning with the date on which those circumstances arise."

Despite the fact that my constituent's wife and child were habitually resident in Scotland, within three months of their departure from Scotland, the English courts seized jurisdiction and granted an interim order in contradiction of the 1986 Act. For reasons that I have discussed, I have not given precise dates so as not to identify the parties.

My constituent entered into proceedings in the English courts within the 12-month period, but in any case that is irrelevant, because section 41(2)(a) of the 1986 Act states that the habitual residence does not change

"without the agreement of the person or all the persons having, under the law of that part of the United Kingdom"— in this case, Scotland—

"the right to determine where he is to reside".

Section 41(1) provides for a 12-month period, and section 41(2) makes the father's, or any guardian's, consent necessary. However, none of those jurisdiction requirements was met when the English courts were allowed to deal with my constituent's case. The English court had no jurisdiction under legislation governing those matters, but it granted the order anyway. Despite that fact, subsequent hearings, all the way to the Court of Appeal, upheld the order. It is clear from the judgments that the provisions of the 1986 Act were not fully considered. As I have said, my constituent acted on his own behalf and had no expert legal advice, and I would hope that the court would take that into consideration. The assumption seems to have been made at every level that after 12 months' residence, the child automatically assumed habitual resident status in England. Nowhere, in any of the judgments, was section 41(2) considered, and at no point did any judge make it explicit that the court took over the father's rights under section 41(2) by, for example, pleading the paramountcy of the interests of the child's welfare.

My constituent believes that his rights as a father have been taken away from him by the courts. It seems that at no stage in his contact with the legal process, whether with solicitors on both sides of the borders, or with the courts, was there a full understanding of the way in which section 41 should operate. Will the Minister address that issue? I have been intimately involved with this case over the past few years, and it makes me very concerned about the way in which, not only this case, but other similar cases, should be dealt with. Scotland has a completely separate legal system, which is entitled to be recognised.

I should like to raise another issue about the operation of the legislation, and the way in which it can prevent a speedy resolution to often very difficult problems. I spent many years as a solicitor in Scotland specialising in family law, so I have some experience of the issue, and know how sensitive the courts need to be and how difficult the issues are. My constituent's position all along has been that the English courts have no jurisdiction and that the case should be dealt with in Scotland. He was advised on both sides of the border that if he made any plea in the English courts for residency or contact, he would put at risk his position on jurisdiction. He was presented with a dilemma. He feels strongly about the jurisdiction issue, and he has pursued it. Apart from the initial error by his London solicitors, he has made no attempt to apply for a contact or residency order. That has worked against him in several ways. He lost the argument about jurisdiction in the English courts, and the judges have made it clear that they are not sympathetic to his case, because they regard the jurisdiction issue as a distraction. He regards jurisdiction as a fundamental issue, and as a Scottish lawyer, so do I.

The 1986 Act exists to regulate processes within the different jurisdictions in the UK, but it seems that it can be ignored at will. That is difficult enough to accept, but if my constituent's advice that he would prejudice his position by presenting a case for residence or contact is correct—I believe that it is—the Government should address the issue. It is in everyone's interests to ensure that family proceedings have "as little bureaucracy"—I put that in inverted commas—as possible. If artificial impediments such as a preliminary plea or jurisdiction can prejudice fundamental issues such as residency or contact with a child, I hope that the Government would want to deal with the matter. I ask the Minister to look at it carefully.

The solicitors initially consulted on both sides of the border and the judge of first instance appears to have acted in complete ignorance of proper jurisdiction in all aspects of the legal process. In such difficult and sensitive issues as residence or contact with a child, the law must be considered and applied meticulously and sensitively. My own experience dealing with family matters in Scotland is that that is generally done, but the Minister will be well aware of the various concerns raised principally by groups representing fathers in custody cases, some of whom have gone to extreme lengths to make their point. My constituent has avoided that, and he has applied himself to studying the legal issues and presenting his arguments, which is the appropriate way to proceed. However, from my considerable contact with him I know his intense disappointment, frustration and sense of unfairness at how his case has been dealt with in every part of the legal process.

As far as my constituent is concerned, the law is explicit about what is intended. He thinks that his rights have been bulldozed in a way that he finds difficult to understand—despite his substantial experience of the law, he is a lay person and not a lawyer. I submit that it is not good for the legal process and not good for the system that that perception should prevail. The case is difficult and the father's choice might not be one that all of us would make, but he feels strongly about the issue. He feels even more strongly that the system is unfair and makes it difficult for people in his position to get the right treatment.

At the end of the day, a young child has been denied contact with her father for several years. The case is likely to progress to Europe, delaying the matter further. The Government should address the issues, and I am anxious that the Minister should do so. I appreciate that she has not had advance sight of my speech, so it will be difficult for her to respond in detail. I do not expect her to do so, but I would be very pleased if she were to write at a later stage.

Annotations

Richard Fromholc
Posted on 23 Jan 2008 6:25 pm (Report this annotation)

This all boils down to a simple fact that society and the system deems it appropriate that in cases of child custody battles between parents, there is a sinister and immoral approach to where the child should reside and where the power base is on separation.

If the childs best interests principle was really at the forefront then what we would have is equality between both parents and the damage to the child would be minimal.

What we have instead is an archaic and immoral system that systematically shuts out a parent from a child's life.

Why is it being accepted that it is ok for a child to not have both parents continued to be in their lives post separation?

The child did not stop loving and needing the parents post separation!

If the childs welfare is paramount tell me why one parent is no longer required?

Why do parents have to go to court to remain a parent?
Did they break a law or commit a crime?

It is a well known fact that residency of a child equates to "Ownership", why?

If the system deems it appropriate that the child must be resident with one parent how is this achieved?

Is there an immediate assessment of the parents to ascertain which parent this shall be?

Should this assessment take into consideration which parent has the parenting skills and standing to give the child the best start in life?

Why are both parents not treated equally on separation?

Why is shared parenting not accepted as the norm.

Why is any court action ( if there has to be any ) not ongoing in the background and the continuity of the child/parent involvement not allowed to continue as normally as possible?

Are the courts and the Judges really qualified to act as "god" over our children.

Shouldn’t equal really mean equal?

When a parent has gone down the adversarial legal route and strived to achieve justice from the courts in regards to remaining a parent to their child, why is it that any court orders or decisions that have been made regarding the involvement with their child will not be upheld and enforced. This is breaking the law and it is criminality.
What is the basis for this?

Ask yourself this: Is it reasonable or appropriate for a child to lose a loving and devoted parent and their extended family just because one parent has been gifted "Ownership" of the child?

Stephen O'Brien
Posted on 15 Sep 2008 12:05 pm (Report this annotation)

I feel the system dates back to the 1900's.

The child has two parents and still has two parents. There should be a near automatic arrangement for both parents to have access.

The best interents of the child is just a stick to make no clear guidelines to do anything, Letting a partner hurt another through the children. However in the long term not having access to both parents "Is almost never" in the childs best interent.

This has been shown in studies in the USA and Sweeden.