Practice Area: Family

Cross-border child abduction is an all too frequent result of broken relationships but it is also unspeakably cruel and English judges take their international treaty obligations to stamp it out very seriously. The High Court powerfully made that point in ordering the return of two young children to their homeland in Italy.

Although their parents met as students in the UK and owned property in this country, there was no dispute that the children were ordinarily resident in Italy. Following the breakdown of their parents’ relationship, their mother removed them to England in what the Court described as a blatant act of child abduction. Their father launched proceedings in England under the 1980 Hague Convention on the Civil Aspects of Child Abduction, seeking an order for their return to Italy.

Granting the order, the Court noted that child abduction is a particularly cruel, unpleasant and insidious form of abuse. The children had been the subject of extensive contact and custody proceedings in Italy and Italian judges had expressed concern about the mother’s attempts to alienate them from their father. As an interim protective measure following their abduction, an Italian court had awarded him exclusive and immediate custody of the children.

The Court rejected the mother’s plea that an enforced return to Italy would expose the children to an intolerable situation or grave risk of physical or psychological harm. The children’s objections to returning to Italy were rooted in the adverse and antipathetic image of the father that had been fostered by the mother. In short, there was an overwhelming case in favour of a return order being made.

The father had in good faith undertaken to pay for the mother’s one-way flight back to Italy and to cover her accommodation rent for three months. He also promised not to initiate or support any criminal proceedings being brought against her. However, the Court noted that it would have issued a return order even had those undertakings not been offered.

Amidst the COVID-19 pandemic it has become even more popular to seek resolution of financial issues arising from divorce via private arbitration rather than formal court proceedings – but to what extent are arbitration awards binding and enforceable? The Court of Appeal confronted that issue in a guideline case.

A divorcing couple who, due to the pressure on judicial time, faced a potentially long delay in receiving a court hearing instead took the quicker route of submitting their financial differences to arbitration. That procedure had the added advantage of being conducted away from the eyes of the media. They signed an agreement whereby they accepted that the arbitrator’s award would be final and binding.

The husband was dissatisfied with aspects of the arbitration award concerning his housing needs, the distribution of pensions and the amount of maintenance he was required to pay his ex-wife. He applied to a judge either for permission to appeal against the award or for a direction that it should not be given effect by an order under the Matrimonial Causes Act 1973. In rejecting his application, however, the judge emphasised the importance of arbitration awards being treated as final.

In ruling on the husband’s challenge to that outcome, the Court noted that the case raised an important point of principle. It was a common misconception that arbitration as an alternative to court process is the purview of the rich in search of privacy. The backlog of cases arising from the pandemic meant that arbitrations were likely to become a prevalent means of resolving even modest-value cases.

It was of the utmost importance that potential users of the arbitration process were not deterred from doing so by, on the one hand, doubts as to the certainty and enforceability of awards or, on the other, concerns that the consequences of mistaken or unfair awards may be inescapable.

In ruling that the husband’s application could succeed only if he were able to show that the arbitrator’s decision was seriously or obviously wrong, or that it was based on a fundamental error or errors that leapt from the page, the judge had applied too high a test. Noting that the overriding objective of arbitration is to achieve fairness, the Court found that the husband was entitled to relief if he could establish that the arbitrator’s award was simply wrong.

The husband’s application was sent back for redetermination by another judge. Noting the impact that growing legal costs was likely to have on the modest marital pot, the Court implored the couple to seek a negotiated settlement rather than engaging in further litigation.

At Wellers we can advise you on all the types of alternative dispute resolution available on divorce and of course, we have specialist family lawyers to advise generally on all aspects of divorce, including children and finances.

A parent who wishes to move from one country to another with his or her child must first obtain the consent of the parent left behind. That principle of international law is easily stated but, as a guideline Court of Appeal ruling showed, applying it in a way that protects the child’s welfare is often a much more complicated matter.

The case concerned two children, aged six and eight, who were born in Germany, where they spent the first years of their lives. Both their parents were also born in Germany. After the parents’ marriage came to an end, the father agreed that the mother could move to England with the children for 12 months or so.

After disagreements arose concerning the level of contact between the children and their father, the parents engaged in mediation. An approximate date for the children’s return to Germany was agreed and a letter of intent signed by the parents stated in terms that the children’s home would remain in Germany.

The mother, however, later announced that she would not be returning to Germany with the children. She had by then formed a relationship with a man in this country, whom she had since married, and was heavily pregnant with his child. The children had settled quickly in England and were doing well at English schools.

The father’s response to the mother’s decision was to launch proceedings under the 1980 Hague Convention, which enshrines the international ban on cross-border child abduction. In ordering the mother to return the children to Germany, a judge found that they remained habitually resident in the country of their birth and it would not be intolerable for them to go back there.

In upholding the mother’s appeal against that outcome, the Court noted that she had always been the children’s primary carer and that they had predominantly lived in England for a year prior to her decision. Whilst not diminishing the importance of their links to Germany, the Court found that the extent of their integration and the stability of their lives with their mother in England meant that they had become habitually resident in this country. The father’s application was dismissed.

We can assist if you need legal representation in relation to worries about or actual child abduction or children law generally, Please do get in contact,

Unmarried couples should be under no illusions that they do not have legal rights equivalent to those who have tied the knot. The point could hardly have been more powerfully made than by a case concerning an unmarried former couple whose close-knit life together yielded three children and a family business.

During their relationship, the couple were the sole directors and equal shareholders of a company that ran a vehicle repair and MOT garage. Had they been married, the value of the business would have formed part of the financial pot to be divided between them on divorce. As their relationship was never solemnised, however, the option of divorce proceedings was not open to them.

After the relationship ended, the man took steps to transfer the company’s business to a new corporate vehicle which he wholly owned. He did so without the woman’s agreement. She responded by launching unfair prejudice proceedings under Section 994 of the Companies Act 2006 on the basis that he had, by his unilateral move, unfairly prejudiced her position as a shareholder.

Ruling on the matter, the High Court noted that the man did not dispute that claim and had been ordered to purchase the woman’s 50 per cent shareholding in the company. The value of that shareholding was, however, not agreed and there was a risk that the costs of the proceedings would be disproportionate to the modest value of the business.

After hearing expert valuation evidence, the Court took a broad-brush approach to the issue and found that £45,500 represented a fair price that the man should be required to pay for the woman’s shares. Noting the commercial realities of the dispute, however, the Court urged the couple to settle their differences.

The woman could only receive what the man was able to pay and forcing him into bankruptcy would be futile. A fair division of their joint assets in a manner that secured both of their futures, and most importantly that of their children, would ultimately be in the best interests of all concerned.