It is emotional for parents who have undergone divorce or separation when their children are separated from them and they lose custody. What gets even more difficult for parents is when they are living away from their children in separate parts of the world. We consider the case of Ford v Khalil & Another (2018) in which the children were separated from the parents and ended up living with their step-father in Alaska whilst the parents are in the UK.
Both parents are British who began a relationship in 2009 when they lived together until their relationship broke down in 2012. The parents have 2 daughters from the marriage. Following their separation there has been considerable litigation between the parents.
After the parents separating the children remained in the UK with their mother. The mother formed a relationship with a man who was settled and employed in Alaska (USA) and became pregnant following which the mother married her new partner.
The mother then made an application to the family court for permission permanently to remove the two children to live at the settled home of her new husband in Alaska. The father contested this and the court refused permission to the mother to relocate the two children to Alaska.
In October 2015 the mother travelled with the two children to Alaska. She did not have the permission of the father or the court to do so. The father had no prior warning or intimation that the mother was going to do that.
In response the father applied in person to the High Court following which the judge made the two daughters wards of the court and ordered the mother to cause or permit them to be returned to the UK. The mother states she was never served with the orders and knew absolutely nothing about them. The father claims to have served them to an email address which it is said was not the actual email address of the mother.
Quite surprisingly the father failed to make any application to the courts in Alaska or anywhere in America for the return of the children pursuant to the Hague Convention. The father has never at any time since the removal in October 2015 issued any proceedings of any kind in any court in America. The father states that he was informed by a lawyer in America that they would not act for him pro bono but that he would have to produce upfront funding of the equivalent of about £20,000, which he says he did not have. The fathers stance was rather bizarre given that under the Hague Convention legal services are required to be provided free of charge to an applicant in the country in which the application requires to be made.
The father notified the police of the alleged abduction of his children, and steps were taken by the authorities here for the extradition of the mother to England to face criminal proceedings under the Child Abduction Act 1984.
In September 2016 the father learned that the mother might be arrested and extradited back to England which raised the question of who would then be caring for the children. The father applied to the High Court who ordered:
“If and when the respondent mother is arrested and detained, and if this involves her separation from the children, the interim care and control of the two children…be granted to the father…and he be at liberty to fetch them from the USA back to this jurisdiction”.
The mother was required to surrender to the US authorities in January 2018 and did so. The mother has been held continuously in custody, first in America and then she was extradited to England on 10 April 2018, now a month ago. Magistrates refused bail and the mother has been committed for trial to a Crown Court.
The solicitors instructed by the mother in the UK learnt of the order to which allowed the care and control of the children to be granted to the father. The mother’s representative applied to another High Court judge who suspended the order allowing control of the children to the father.
The judge noted: “Both parents are here before me in London, but where are their children? The answer is that the children continue to live at the address in Alaska, which is their settled address, with the mother’s husband and with their half-brother. I am told in a position statement on behalf of the mother and accept, purely for the purposes of this hearing today, that the children are essentially very settled where they live. They obviously know their stepfather very well. They have inter-related with their half-brother from the day he was born. They are settled in schools in Alaska”.
The judge stated in his judgement: it would be hard to devise a more emotionally damaging set of facts for two young children. They have had no contact whatsoever with their father for over two-and-a-half years. They were able to see their mother when she was in custody in America, but they have not lived at home with their mother since January and not seen her at all since she was extradited to England on 10 April, now a month ago.
Because the alleged offence involves the children, the prison authorities here in England do not permit the mother to have any communication whatsoever with the children. These children therefore find themselves far away from here, completely cut off from both their parents, and they cannot have the least reassurance as to when they may see their mother again.
The judge stated it is a matter of the utmost regret that, for whatever reason, the father did not press on with his contemplated application under the Hague Convention in late 2015. Had an application been made earlier the issue of the children may have resolved.
The judge noted that the children were habitually resident in Alaska and discharged the previous orders and ordered the children should continue to live in the care of their stepfather.
The case illustrates the complications which arise if a parent takes the law in their own hands and fails to obtain the adequate advice. The children are now living half a world away from their parents which may have otherwise been avoided if the father secured early legal advice and action.
If you would like information and advice on any child matter then contact us on 0330 094 5880 or let us call you back to arrange a free initial consultation with one of our family law specialists. With family lawyers in York, Newcastle, Oxford, Manchester and London we are proud to have national reach.
We are a team of family law and divorce experts with years of experience in dealing with all areas of family law matters.
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