How families benefit from being in the EU

Posted by Christine Plews on
Many of us keeping an eye on the political debate over the UK's possible exit from the EU, will be wondering how exactly what will happen if we leave.

Some of our legislation comes from being part of the EU and has been pivotal to remedying situations.

One piece of family legislation that has come from the UK being part of the EU, is where a child is taken from one country to another without the permission of one of the parents.

The Hague Convention on the Civil Aspects of International Child Abduction or the "Hague Abduction Convention" to give it its more user friendly name, was a treaty that a number of countries signed up to so as to provide a legal remedy to ensure the prompt return of children who have been abducted from the country where they normally live or have been wrongly retained in another country which is not their country of habitual residence.

In family cases, this situation normally arises where a parent of the child, without the permission of the other parent, will either take the child out of the country they live or, refuse to return the child to that country at the end of a defined contact period.

Where an application is made, the Court dealing with the case doesn’t need to consider the merits of any background child arrangements dispute, it only needs to determine whether or not the child should be returned to the country of their habitual residence. By dealing with cases in this way, matters are dealt with swiftly and a decision is made as to where the child should be placed. Once this issue has been addressed, the parents can then deal with the longer term arrangements for the child as a separate point.

Due to the focused nature of this legislation, there are limited defenses that can be raised if an application is brought. To raise a successful defence, the responding parent must establish one of the following to the degree required by the law of the country considering the application:

  • the person bringing the application was not "actually exercising custody rights at the time of the removal or retention.
  • the person bringing the application had "consented to or acquiesced in the removal or retention.
  • that more than one year has passed from the time of wrongful removal or retention until the date of the commencement of judicial or administrative proceedings.
  • that the child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the parent bringing the application and that it is appropriate to heed that objection.
  • that there is grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
  • that the return of the child would be subject the child to violation of basic human rights and fundamental freedoms.

So, although in the coming months there will undoubtedly be political and economic arguments raised on both side as to whether it is good or bad for the UK to exit the EU; at least when it comes to really important issues such as children being abducted, there is a quick legal framework in place to address this.

About the Author

Photograph of Christine Plews

Christine leads the Family Law Practice Group and specialises in matters arising out of divorce and separation, including cohabitee disputes. She is an experienced mediator.

Christine Plews
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01865 254213

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