Brexit - Family Law Perspectives

brexit
My first thoughts on Brexit news today was sympathy for parents whose children have been removed to other European countries following leave to remove decisions. The decision last night will be causing them uncertainty and anxiety.

One of the the best EU regulations from a family law perspective (or bureaucracy that was forced upon us as some would say), were the Brussels II Revised Regulations. Article 21 of those regulations make contact orders made in one EU country (excluding Denmark who opted out) enforceable in another EU member state. Will we lose those protections? Will a replacement to that agreement be made between the UK and EU? Will this protection be removed entirely, and will the parent facing the high cost of legal proceedings in the UK then face the daunting cost of starting again in a foreign jurisdiction with a UK order not worth the paper it’s written on? One can only hope this is not forgotten in the Brexit negotiations which follow. I wish I had the answers to give assurances, but no-one does nor will for some time.

Parents whose children are relocated to other EU states may face higher air fares (Europe saw the end of bi-lateral air service agreements); they’ll face travel insurance costs (while at the moment there are reciprocal agreements); and then there’s the loss of protected rights in terms of travel to other European countries. Will their children be able to return to the UK if they so decide when they reach adulthood? Maybe only if they have the requisite skills to meet an immigrant quota system. School choice and subject choice could become far more important for parents who remain in the UK. Will there be a right to involvement in those decisions? Will that right be enforceable in a foreign jurisdiction? Unlikely.

In terms of protections against international child abduction, we’ll stay part of the Hague Convention on the Civil Aspects of International Child Abduction, but I’ve no doubt that membership of the Brussels II Regulations gave British parents (and all European parents other than the Danish) greater protection. The Hague Convention as we all should know, is no guarantee of having your child returned.

I’ve no doubt that membership of Europe made it harder for the Tories to pursue their wish to extract the UK from the Human Rights Act (and EU Convention on Human Rights). It is the UK’s being subject to the European Court of Human Rights which freed Sir James Munby to insist on legal aid being given to two parents with learning difficulties who couldn’t afford legal representation, who faced their children being permanently removed from them by social workers, but had had their right to legal representation taken away by Government. They faced a Local Authority with a full legal team. Our judges could challenge the decision of Government on human rights’ grounds, because those rights were protected despite what was undeniably a democratic decision to strip those rights from two, vulnerable parents who lacked the capacity to conduct their own case. Democracy isn’t always a good thing or democratic decisions defensible. Europe at least gave a check and balance against human rights abuses. A chance for the man or woman in the street to stand up to large institutions and fight injustice.

I know some who view Brexit as a good thing. In terms of the microcosm of family law, it is not. My thoughts today are with the parents it affects, and who will be affected in the future.

Saanich police following new leads in 2016 child abduction case.


Saanich police detectives are following new leads in an international child abduction case that has left one parent on the run and the other desperate to find her daughter.

“It’s absolute torture,” Brown said Tuesday, Kaydance’s third birthday.Tasha Brown last saw daughter Kaydance on May 7, 2016, the day before her estranged partner, Lauren Etchells, and Kaydance boarded a plane from Vancouver to London Gatwick Airport. They were with Etchells’ new partner, Marco van der Merwe, and the couple’s newborn child.

Etchells is wanted on a Canada-wide warrant for one count of abduction by a parent, which carries a maximum sentence of 10 years in prison, and two counts of disobeying a court order.

Saanich police do not believe Kaydance is at risk of physical harm.

Officers believe van der Merwe is in the Netherlands. It’s unclear whether Etchells and the two children are also in that country.

“Detectives are attempting to locate him in hopes that he can provide valuable information about the whereabouts of Kaydance and Lauren,” said Acting Sgt. Jereme Leslie of Saanich police.

Brown, who works as a teacher on call, said even this small bit of new information gives her hope Kaydance will be found. She said she tries to keep busy to protect her mental health. But some days, the sight of a stroller or a mother and daughter will trigger a deep depression.

Last year, Etchells told the Times Colonist in a letter that she would not turn herself in because she feared for her child’s safety. “I didn’t kidnap my child,” she wrote.

Investigators contacted van der Merwe, who was then believed to be in Qatar. Police said at the time that he was “less than co-operative” about Etchells’ whereabouts.

Brown said she suspected van der Merwe was going to try to sponsor Etchells and the children to live in Qatar through his work permit, so she contacted his employer and told them about the abduction allegations.

The alleged abduction is the culmination of a bitter custody battle between the two women.

Etchells and Brown married in August 2012, and Etchells gave birth to Kaydance after the couple decided to conceive using a sperm donor. After they separated in July 2015, Etchells was given full custody of Kaydance, but Brown was fighting for equal custody rights.

Lawyers Collective Urges Centre to not Sign Hague Convention On Civil Aspects Of International Child Abduction

Lawyers Collective and Advocate Suranya Aiyar have urged the Centre to not sign the Hague Convention on Civil Aspects of International Child Abduction. The Convention, signed by 96 countries, provides for a mechanism to return a child internationally...abducted by a parent from one member country to another.

The NGO and Ms. Aiyar have pointed out several reasons for opposing the Convention in their submissions made to the Committee on the Convention as well. Calling the Convention a “draconian and insensitive law”, they have, thereafter, appealed for a n...for a negotiation of terms with foreign Governments that would “preserve and foster a child’s relationship with both its parents”.

Fleeing parent is not an “abductor” The submissions protest against the terminology used in the Convention, when labeling the removal of children from a country by their own parents as “abduction”. “We should not stigmatize parents coming to India.


US: Mother reunited with son after nearly a year.

MONROE COUNTY, Ohio 
A Monroe County mother has reunited with her son who was abducted and kept overseas for nearly a year.


Barbara Hise has been fighting since last November to get back her 9-year-old boy who was illegally kept from her.

The story ends in Woodsfield, but it began thousands of miles across the ocean in the island country of Malta, where a judge ruled that a boy was held against his will for nearly a year. Now that boy is back home in the United States.

"I can't even put it into words,” Hise said. “I know the first few days he was here, I would wake up and, 'was it a dream?' Is this real?' And I would walk up to his room, and he would still be sleeping, and I just said, 'oh thank you, God. He's home.'"

Hise, her husband and her two other young children, are still coming to terms that after 9 months, 9-year-old Zander is home. In November, Hise's ex-husband was due to return Zander back home as part of a U.S. court-ordered custody and visitation agreement.

"The reason this was an abduction rather than a retention is because it was premeditated,” Barbara said. “He had a child psychologist ready to go even before Zander was in his custody."

Hise and her ex-husband wrangled over Zander's mental health and cognitive abilities. Diagnosed with autism, Zander's biological father tried to convince a Maltese court that he didn't have issues with autism, and that Barbara’s homeschooling of Zander was harmful.

The judge in Malta disagreed.

"He even mentioned in the order of return, my other two children, that this was an injustice to all of us,” Barbara said.

She couldn't do it on her own. The iStand Parent Network helped with travel and ironing out international bureaucracy.

"We don't charge any money or any fees,” explained Dr. Noelle Hunter, president, iStand Parent Network. “It's exhausting work, but Zander's case --"Bring Z Home to Me" -- it's the absolute example of what we do and why we do it."

According to state department data, more than 1,000 American children are abducted by parents or guardians. And only about 20 percent of them return. The daunting task didn't faze Barbara. Her faith in God powered her through doubt and pain.

"I never lost my faith. He was there every step of the way,” she said. “You can't tell me there is no God, because I felt him every step of the way. I see him every day of my life when I see my kids together."

The fight is not yet over for Barbara. She plans to return to D.C. in late October to fight for other parents whose children have been abducted.

La Cooperación jurídica internacional y el efecto devolutivo del recurso de apelación en los procesos de restitución internacional de menores

Autores: Tagle, Graciela - Mastrángelo, Fabio  Publicado en: La Ley Online;  Cita Online: AP/DOC/524/2018 Sumario: I. Introdu...