Child Law

A new report from the Local Government and Social Care Ombudsman has called on councils to do more to ensure they are providing the appropriate level of support and guidance to children subject to Special Guardianship Orders and their carers.

The Ombudsman defines Special Guardians as people who look after children who are not their own, following a court order. This order is known as a Special Guardianship Order (SGO), which gives carers greater rights to make decisions on behalf of the children they are looking after and also provides children with a greater degree of permanence.

According to Government figures, the number of SGOs made in 2015 reached over 5,300, which is an increase of 81% compared to 2011.

“Special Guardianship Orders can offer a stable and secure home life for some of the most vulnerable children in our society; children for whom, for whatever reason, it is not possible to live with their birth parents,” explained Local Government and Social Care Ombudsman, Michael King.

“Many of these guardians are also family members, and take on their role willingly, but with little notice and without understanding the consequences,” he said. “It is imperative, therefore, that these children and their guardians get the right support available to them – and without having to fight the system to get what they are entitled to.”

“Many of the investigations detailed in the report have resulted in councils taking positive steps to improve their practices,” he added. “I would encourage all councils that have a duty to support people contemplating becoming special guardians to learn from this report and ensure their policies and procedures include the proper provisions for families.”

Contact Us

For expert legal advice on Special Guardianship Orders, and other issues involving children, then contact our specialist family lawyers today.

An Advocate General of the Court of Justice of the European Union has given his opinion in a case concerning the rights of grandparents to see their grandchildren.

The case in question concerned a grandmother, Ms Valcheva, who is a Bulgarian national. Her grandson was born in 2002, and since his parents’ divorce he has been habitually resident in Greece, where he lives with his father who is a Greek national.

Grandmother Seeks Access to Grandson

Ms Valcheva wishes to maintain a relationship with her grandson and sought to obtain rights of access. However, she was unsuccessful in her attempts to establish quality contact with her grandson and did not receive any support from the Greek authorities. She therefore applied to the Bulgarian courts for a determination of arrangements for her to exercise rights of access to her grandson. The access she requested consisted of seeing her grandson one weekend each month and that he come and stay with her at her home in Bulgaria for two or three weeks during his holidays.

National Courts Dismiss Case

Her application was dismissed by the Bulgarian courts of first instance and also the appeal court on the basis of lack of jurisdiction on the ground that an EU Regulation (Brussels IIa Regulation) provides for the jurisdiction of the courts of the Member State in which the child has his habitual residence i.e. Greece.

Ms Valcheva then took her case to Bulgaria’s Supreme Court, which has taken the view that in order to determine which country’s court has jurisdiction, it is essential to ascertain whether or not the Brussels IIa Regulation applies to the rights of access of grandparents. The case was referred to the Court of Justice for a ruling on this question.

Advocate General Gives Opinion

Advocate General Szpunar has now given his opinion on the matter. He notes that his analysis has been guided by the principle that the best interests of the child come first, which is of fundamental importance under the Brussels IIa Regulation.

He also notes that if applications for rights of access by persons other than parents are to be excluded from the scope of the Brussels IIa Regulation, jurisdiction in respect of such applications would be determined by non-harmonised national rules. The risk of bringing the dispute before a court the child has no close link to, and the likelihood of parallel proceedings and irreconcilable decisions would increase, contrary to the purpose of the Brussels IIa Regulation, which aims to lay down uniform rules of jurisdiction in accordance with the principle of proximity in judicial proceedings.

The Advocate General also looked at relevant international instruments such as the 1996 Hague Convention, noting that they adopt a broad concept of rights of access, thus supporting the integration of ties between near relatives, which can play a considerable part in family life.

He concluded that the concept of rights of access includes persons other than parents, since those persons have family ties to the child based on law or on fact.

He has therefore proposed the Court of Justice rules that in matters of parental responsibility rights of access include the rights of access of grandparents

It is important to note that the Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court will deliberate the case and give their judgment at a later date.

Contact Us

For expert legal advice on these issues, and other areas of family law, then contact our specialist family lawyers today.

Cases where children are taken out of the country by one parent without the consent of the other can be highly complex.

One such case, which involved the removal of two children from Australia to the UK by their mother, recently found its way to the Supreme Court, which has now published its decision on the matter.

Facts of the Case

The case concerned a married couple who lived together in Australia with their two children until 2015. By the end of 2014 the marriage was apparently in trouble, and the mother, who holds British citizenship, wanted to make a trip to England with the children before returning to work from maternity leave. The father agreed to an eight-week stay, however the mother and the children have remained in England since they arrived in May 2015.

Discussions between the mother and father apparently resulted in the father agreeing to an extension of the eight week visit up to a year and at that point the mother gave notice to her employer and looked for work in England.

In September 2015, the mother enrolled the older child at a local pre-school. In November 2015, without telling the father, she applied for British citizenship for both children who had entered England on six-month visitor visas. Her solicitors wrote a letter to the immigration authorities on her behalf indicating that she and the children could not return to Australia for fear of domestic abuse.

In continuing correspondence, the father pressed the mother on the children’s expected date of return. The mother indicated that she did not know what her plans were but made clear that she would not be returning in May 2016. In June 2016, she expressed her intention to remain in the UK.

Father Brings Legal Action

The father made an application in the High Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Abduction Convention”).

One issue the court had to decide was at what point did the mother decide not to return to Australia. The mother’s own case was that by April 2016 she had felt she and the children would not be returning. The arguments before the Court meant that, on any view, there was a decision not to return to Australia before the expiry of the agreed year.

The High Court found in the mother’s favour, ruling that the children were habitually resident in England and Wales by the end of June 2016 so that mandatory summary return was unavailable under the Abduction Convention. But it accepted the mother’s evidence that she did not have the intention, in November 2015, or before April 2016, not to return to Australia.

Appeal to Supreme Court

The father successfully appealed this decision in the Court of Appeal, however the mother brought an appeal to the Supreme Court, which had two main issues to consider:

• what is the effect on an application under the Abduction Convention if a child has become habitually resident in the destination state before the act relied on as a wrongful removal or retention occurs?;
• and if a child has been removed from their home state by agreement with the left-behind parent for a limited period can there be a wrongful retention before the agreed period of absence expires (so-called “repudiatory retention”)?

The Supreme Court found in favour of the mother and has allowed her appeal. At the same time, it dismissed a cross appeal by the father on the issue of habitual residence.

With regards to the first of the issues set out above, the judgment explains that:

“The Abduction Convention cannot be invoked if by the time of the alleged wrongful act, whether by removal or retention, the child is habitually resident in the state where the request for return is lodged. In such a case, that state has primary jurisdiction to decide on the merits, based on the child’s habitual residence, and there is no room for a mandatory summary decision.”

On the second issue, the judges said that:

“On the present facts there could not have been a wrongful retention in April 2016 as the mother’s internal thinking could not by itself amount to such. If she had such an intention in November 2015, the application to the immigration authorities could have amounted to a repudiatory retention. But it was open to the judge to believe the mother’s evidence that she did not possess this intention in November. There is no basis in law for criticising the judge’s decision as to habitual residence.”

Contact Us

For expert legal advice on these issues, and other matters involving children, then contact our specialist family lawyers today.

The British Association of Social Workers (BASW) has recently published the results of a UK-wide enquiry into adoption.

Key findings of the Adoption Enquiry include:

• It was considered that in recent decades, and particularly in England, policy makers had tended to promote adoption as risk free in a ‘happy ever after’ narrative. The Enquiry heard from a range of respondents across the UK that this is unhelpful as it can lead to the silencing of adopted children and adults who may have to manage contradictory emotions such as grief and loss, joy and happiness.
• Austerity was adding to the “considerable adversities” faced by many families in poverty who are seeking to safely care for their children. Welfare and legal aid cuts had reduced the financial resources available to some, while services designed to help more families stay together and prevent children being taken into care had also been stripped back. Cutbacks were also impacting post-adoption support, with provision for both birth families and adoptive families “inadequate”.
• The quality of the relationship between social workers and families was “crucial” to pre-and post-adoption support. However, it warned the pressure of rising caseloads and cuts to services, meant many practitioners felt limited in the time and support they could provide and some families feared their children would end up taken into care if they sought help.

The enquiry’s authors, Professor Featherstone and Professor Gupta, made five recommendations and BASW has accepted them and has outlined how they will action them.

Contact Us

For expert legal advice on adoption, or other issues involving children, then contact our specialist family lawyers today.