Anyway, for those of you not
aware, recently Emmerdale has seen its fair share of family breakups – children
caught in all of them – and Coronation St. sees an abusive relationship play
out, baby in tow.
The current storylines
highlight issues that we see frequently when families separate and so I shall
go through them and the legal points they raise over a couple of posts…
1. The Step-family and removal from the jurisdiction
Marlon fathered baby Leo with
his then partner Rhona – they separated when she was pregnant and she formed a
relationship with Paddy, whom she married. All was well and Marlon was seeing
Leo (who has Downs Syndrome) regularly. Paddy was offered a job in New Zealand
and they all agreed to go with Leo. Marlon changed his mind and wanted baby Leo
to stay in the UK – all hell broke loose….
There are several issues that
this potentially throws up. Firstly, Marlon and Rhona were not married when Leo
was born – unless Rhona named Marlon on Leo’s birth certificate (which from
memory she did) he would not have Parental Responsibility for Leo and she would
be the only person to have this. This would have meant that there would be
nothing legally to prevent her changing his name, removing him from the
jurisdiction or taking other important decisions in his life without consulting
Marlon.
Paddy’s status in Leo’s life
as his step-father is also an issue. Simply marrying Leo’s mother does not of
itself provide Paddy with Parental Responsibility for Leo. Marlon (assuming he
has PR) and Rhona could have agreed to execute a PR Agreement to provide Paddy
with PR for Leo but unless they did that he would have to apply to the Court
for an Order to obtain PR.
This doesn’t affect matters
day to day because Rhona has PR for Leo and it is unlikely that Paddy would
ever have to make any important decision for Leo alone – consider though if
Rhona were to die – Paddy would almost certainly need PR were Leo to remain
with him.
Marlon commenced Court
proceedings for Residence of Leo when he changed his mind about leaving for New
Zealand and the Court granted an interim order to prevent any removal called a
Prohibited Steps Order. Rhona left the jurisdiction with Leo anyway. Not only
has Rhona breached the terms of the interim Order that the Court made, she also
has committed an offence under the Child Abduction Act if Marlon has PR and she
removes Leo for more than a month.
She also is potentially is
liable to be prosecuted for “child abduction”.
To some that seems odd on the
basis that Leo is her child but “child abduction” is the wrongful removal or
retention of a child. That removal or retention is considered “wrongful” where
it breaches the rights of custody of the other person, institution or other
body under the law of the country in which the child was habitually resident
immediately before the removal/retention.
Where that has happened, the
Hague Convention will come into play – assuming that the other country, where
the child has been removed to or retained in, is a signatory.
New Zealand is a signatory of
the Hague Convention and, as Marlon had Parental Responsibility for Leo (being
named on his birth certificate) his rights of custody had been breached. The
term “rights of custody” do not necessarily refer to who the child was living
with – there has been case law on this point that has established that it is a
wider term that can encompasses both rights given by Court Order, PR and where
care is being given on a daily basis and for all intents and purposes a person
is exercising PR and caring for the child, irrespective of any Court Orders.
The other argument in this
case could be that Rhona had in any event breached the Court’s rights of
custody – as there were pending proceedings for Residence of Leo in front of
the Courts here and in removing the child, she has interfered with the Court’s
right to determine Leo’s residence.
Marlon’s correct course of
action would be to approach the Central Authority for Child Abduction, who will
in turn contact the Central Authority in New Zealand to secure Leo’s immediate
return to England….whether he has done so or not is something I am not clear
on, having missed a few episodes recently!!
………
No comments:
Post a Comment