How Child Custody Is Managed In Divorce When The Parents Are Two Different Nationalities

• Published date: 01 March 2021
• Subject Matter: Family and Matrimonial, Family Law, Divorce
• Law Firm: Giambrone & Partners
• Author: Ms Daniel Theron

The lockdown caused by the coronavirus pandemic has seen an increase, not only in divorce but in parental child abduction. When a married couple is composed of two different nationalities and divorce rears its head it is not uncommon for one parent to decide to go back to their country of origin and take their child or children with them. Needless to say, this poses considerable legal issues and can lead to the arrest of the absconding parent. There can be many reasons a parent takes such extreme action, including their belief that their child is in an unsafe environment. Often warring parents are both devoted to their children but allow their feelings for the former spouse to cloud and impair their judgment.

Daniel Theron, a partner, commented "in the event of marriage breakdown, the permanent removal of a child or children under the age of 16 years to another country without the consent of the other parent or a person with parental authority or a parental order is strongly discouraged, regardless of the reasons. It contravenes the Child Abduction Act 1984 and is, therefore, a criminal offence" Daniel further commented "if exhaustive efforts have been made to contact the other parent or person with parental authority without success, this may be viewed as a mitigating circumstance but this cannot be presumed. There are other limited circumstances that the court may consider in the event of illegal removal of a child".

Children have the right to be heard and their perspectives considered, particularly when the consequences of legal proceedings may have a significant effect upon them.

A child's rights are enshrined in is enshrined in legislation, as follows, Article 12 of the United Nations Convention on the Rights of the Child (UNRC) 1989, and in England and Wales, The Children Act 1989, which provides a checklist with a view to the welfare of children in these circumstances - a list of factors which a judge can consider when deciding what is in the child's best interests. The courts will consider the child's feelings, commensurate with their age and perceived understanding. However, their views will be subject to the court's view of the child's best interests which must come first.

The highly sensitive factors involved in decisions made on behalf of children in divorce cases make this area one of the most controversial for the courts to deal with. The issue was addressed in a Ministry of Justice Report first published in June 2019 - "Assessing Risk of...