Tuesday, September 14, 2010

Guidance in cases of stranded spouses

Following the case of Re S (A child) that I posted about back in July, Mrs Justice Hogg has issued 'Guidance in cases of stranded spouses', for use in similar cases where one spouse has stranded the other abroad. Her suggestions "are designed inter alia to ensure that the 'stranded spouse's' and indeed the other parties' Article 6 and 8 ECHR rights are upheld; to ensure that there is a fair trial of the factual allegations and to enable the child/children to have contact with both parents pending a final welfare based determination on issues of residence and contact", and include:
  • That given the international element and the experience of the Judges of the Family Division in dealing with cases of this type, child abduction and other international cases, the best vehicle for these type of cases is wardship.
  • That at the first (ex parte) hearing the making of a Tipstaff Passport order should be considered, to include that the tipstaff shall search for and seize the mother's passport where it is alleged that the father has taken it.
  • That there should be a Court request for disclosure from the Home Office at the ex parte stage to ascertain the spouses' immigration status so that s/he can immediately make arrangements to obtain an expedited visa/transfer of an existing valid visa to a new passport, with the court including appropriate recitals in directions orders, to assist with that parent's visa application.
  • That upon the return of the stranded parent there should be an urgent interlocutory hearing to consider further directions and the interim welfare arrangements for the child/children and the Court's managed reunification of the stranded parent and his/her child.
Hopefully, the guidance will help minimise the damage done in these cases, and expedite their satisfactory conclusion.

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