October 26, 2012

International child custody: self help more harm than good

By Kate Banerjee, partner and head of Children’s Department

In an unprecedented step, a judge decided to publicise the apparent abduction of four children involved in a custody battle between their Welsh mother and Spanish father.

Although the details of the case are not entirely clear, it seems that mother-of-four Jennifer Jones allegedly ran away from her South Wales home with Jessica (14), Tomas (12), Eva (9) and David (8), after being instructed by the courts to return her children to their Spanish father.

Authorities were alerted, airports and ports put on standby and the family was located the next day. Jennifer was then arrested with her new partner and the children placed in care, prior to their anticipated relocation to Spain.

Deciding upon where children should live is undoubtedly traumatic for everyone involved. This case is made all the worse as it involves two countries with different jurisdictions. However, Jennifer Jones was in contempt of court so there was never any doubt that she would face punishment on being located and arrested.

The Jennifer Jones case is far from the only one of its kind: anecdotal evidence alone shows an increasing number of instances where a British couple split up after moving abroad with their British children. Parents are often unaware that, in these circumstances, the children are under a foreign jurisdiction by virtue of having moved abroad, changing their country of habitual residence even after a short time. If you choose to live in another country, you have to abide by the laws of that country and the British courts have no say over the children’s future.

In the UK complex international custody cases are transferred to a higher court. However, in many foreign countries, a family court may be headed by an inexperienced judge in a local court which may never have dealt with such cases before. Chances are that whichever parent puts the most compelling argument – or plays to that judge’s prejudicial assumptions – will win.

It may be tempting to flee, but self-help is not the best way and may well prove counter-productive as it damages a parent’s credibility in the home court. The fact that someone is disobeying a court order is a sign of their behaviour. The first priority is to ensure that the children are safe and well, meaning the courts can deal with the problem in a calmer atmosphere. Every case is unique and requires a combination of expertise and empathy to resolve.

To find out more how our team of experts at Jones Myers LLP can help you  with international child custody issues, call 0113 246 0055 or drop us an e-mail at info@jonesmyers.co.uk.

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