Child Custody Appeal Case Study

Maya Bhatiani Divorce and Family Law Solicitor
Author:
Maya Bhatiani
Senior Associate Solicitor, Family Law and Divorce
Date:
27/05/2020

Client Situation

Our client’s child had been living outside of the UK for nearly three years when her abusive ex-partner applied for a Child Arrangement Order to request that their child moves back to the UK. A Child Arrangement Order can be used:

  • When parents cannot agree on where a child lives
  • To decide when and what types of contact a child has with each parent (e.g. phone calls)
  • To decide when a child spend times with each parent
  • For parents to settle on any specific issues to do with the child
  • When one parent wants to prohibit the other parent from taking a course of action (e.g. changing the child’s last name)

The father had never had contact with our client’s son as he had previously shown abusive behaviour towards our client. Because of this, the father and child had no existing relationship before he applied to get a Child Arrangement Order.

After becoming fully integrated in to his new home abroad, our client had no plans for her child to return to the UK as he had happily settled into his new life and was already thriving in school.

She was shocked that after having had no contact with their child, her ex-partner had applied for the child to live with him. The thought of having to uproot her son’s life for a potential unnecessary return to England was very upsetting for our client.

How We Helped

Our client got in touch with our Family and Child Law Solicitors for legal advice on what steps she could take to ensure her child would not have to return to the UK. Our client spoke to Maya Bhatiani, a Senior Associate Solicitor who is experienced in a range of complex children matters with international aspects.

Maya worked with our client to collect evidence that would support the fact that her child had habitual residency in his new country. Habitual residency means that once you live in a different country for a certain amount of time, the English Courts no longer have jurisdiction (the power to make legal decisions) over you – although this depends on if a certain set of criteria is met.

For advice on what criteria is needed to prove that your habitual residency is outside of the UK, please get in touch with our Family and Child Law Solicitors, as we tailor our advice to your individual circumstances.

Habitual residency varies from case to case depending on how settled into life in your new country you are. Our client was reassured by Maya that because her child had lived under a different jurisdiction for a number of years, it was going to be very hard for the father to argue that the child was not habitually resident there.

Maya advised the client on the importance of gathering as much evidence as possible of the child’s integration in to his life abroad, to prove to the English Court that they had no jurisdiction over our client’s child. This evidence created the basis for a persuasive witness statement, which set out the key criteria that proved that the child was not habitually resident in England.

The matter was heard before the Court and both parties gave evidence to support their case and were cross examined by the Court.

The Outcome

The Judge ruled that the child would not return to the UK to live with his father. All evidence supported the fact that the child’s habitual residency was not in England and Wales and so the Court had no jurisdiction to order the child’s return or make any orders in relation to the child.

All of the father’s applications were dismissed and our client was extremely happy that her son could continue to live his life happily without disruption or uprooting him into an entirely different country.

Maya pinned down the success of the case to early legal advice, creating a case strategy with the client, and making sure our client was comfortable and confident in her case every step of the way.

For initial legal advice call our Family Law and Divorce Solicitors

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