What happens when an international custody battle looms?

Stowe Family Law|November 1st 2011

Today I was sent this link to a newspaper story about the British television presenter Melissa Porter, who is reported to be facing an “international custody battle” over her only child. Pierce is ten months old. His father is Peter Rinfret, an American millionaire.

Mr Rinfret is no stranger to family law battles. His divorce from his second wife, Cindy, has been described as “contentious”. The former marital home in Greenwich, Connecticut, is on the market for $12 million.

It appears that following a whirlwind romance, during which their son was conceived, Melissa Porter tried out family life in the USA but found it wanting. The family moved to the UK earlier this year, when Miss Porter resumed her TV work and was reported to be looking for a holiday home to rent in Cheshire.

Alas, now it is Peter Winfret who has found family life in another country wanting. According to the article, the family was setting up a new home in London when Mr Winfret decided that he wanted to end the relationship and return to the USA, where he wishes to raises their son.

What happens now?

If what I have read is correct, then I expect that Mr Winfret is considering his options under the Hague Convention for an order for the return of the child to the USA. A legal battle in the USA could follow, even though the financial implications would undoubtedly be heavier for him if the case was fought there. Miss Porter has already made it clear that she does not wish to live in the USA. If a case was fought in that country she would be placed on the back foot, tactically speaking, not least because of the high costs.

These are the real, serious pitfalls of international romance and international family relocation, especially when one partner’s financial “clout” outweighs the other partner’s. Such a situation is far from unusual: our firm’s International Family Law Department takes on many such cases. It is also worth noting that Laura Guillon’s series of posts from earlier this year, about parents who wish to move overseas with children, continue to draw many hundreds of readers every month.

Experience tells me that if an international battle royale looms large and Melissa Porter does not seek specialist legal advice promptly, she could be in trouble.

Which court would gain jurisdiction? Would it be the USA, where the child was born and where the family was living until recently? Or would there be a case for England, where the family last lived together? Admittedly this was for a short period only, but England is where the English mother intends to remain permanently.

If the facts as reported are correct and Miss Porter is properly advised, my money would be on England. I believe that she would have a good case to oppose an application for the “return” of the baby, on the basis that the baby was habitually resident in England at the time of the application for his return to the USA.

The case of H v K (Children)

My take would seem to be confirmed by a new Court of Appeal judgment, to which John Bolch referred in his recent comment on my post about habitual residence and divorce. The test of habitual residence in a divorce case is quite different to the test of habitual residence in a children case. In the latter, the test is based entirely on the facts.

H v K (Children) concerned two children, aged eight and two. The family lived in Australia, but came to England for a year to live in a house owned by the mother. When the year was up it was decided that the father would return to Australia, but that the mother and children would remain in England for a further period. When the mother later announced that she would not go back to Australia with the children, the father brought a case for their return under the Hague Convention. The court found in his favour, and the mother appealed.

The court cited with approval the comments of Lord Scarman, from the case of Re Shah 1983 in the House of Lords:

There are two, and no more than two, respects in which the mind of the propositus is important in determining ordinary residence. The residence must be voluntarily adopted… And there must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All the law requires is that there is a settled purpose.

In the case of H v K, Lord Justice Ward looked at the facts, applied the case of Shah and allowed the mother’s appeal, dismissing the father’s application.

He commented:

I do fear that the judge has allowed her focus to move erroneously to require more permanence for their sojourn here than is necessary to establish that the habitual residence of the family became established in England if only for a temporary stay of 12 months.

It follows that if necessary, Melissa Porter should be able to establish the baby’s habitual residence in England, oppose his return to the USA and issue her application for a financial settlement under Schedule 1 of the Children Act 1989, with the case proceeding in England.

Of course, we don’t know all the facts. For all we know, Miss Porter may already have taken such steps. Her application for suitable housing for her child and herself, a lump sum, a car, a budget to suit the baby’s requirements and so on may already be in progress. Perhaps the father has hit back with a Hague Convention application. Perhaps the situation has already been, or is about to be, resolved amicably. Whatever the truth is, this case centres upon the life of a tiny child who deserves to have both of his parents in his life.

Two final points.if you are planning to relocate to another country with your partner, don’t even entertain the move unless you are 100 per cent sure of your relationship.

As unromantic as it sounds, I also recommend that you iron out the potential family law issues before you leave this country. A carefully drafted, watertight agreement – be it a prenup, a postnup or a cohabitation agreement – is advisable. Ultimately, however, it’s your call…

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. What happens when an international custody battle looms? « Untouched Smile | Care Your Child says:

    […] What happens when an international custody battle looms? is a post from: Marilyn Stowe Family Law and Divorce Blog […]

  2. Wendy says:

    You clearly do not know any of the facts in the above mentioned case. Ms. Porter lived in the US, where Pierce was born and went to the UK on vacation and then decided to remain. Perhaps you should refrain from an uninformed opinion. In addition she is a working person, was with Mr. Rinfret for less than two years. Financial settlement – now there’s a joke.

  3. Marilyn Stowe says:

    I have decided to post your comment even though it is clear you haven’t troubled to read and/or fully understand what I wrote which is based on law not supposition and it seems I was correct in my understanding of the law.

  4. Sheila says:

    I’d like to mention that the respective financial power of the parents can make a huge difference. My ex, in the last proceeding for example, deliberately chose to underwork his hours so that he got legal aid from the start, claiming the stress had ‘debilitated’ him so he could not work full hours. This was also done to avoid having to pay child support. I was affected a great deal more by the stress, as I was the one losing the most by the situation, but I had to support my family and did not get legal aid until my legal bill had reached an insane amount of money. Only then did it kick in. In Hague proceedings, the citizens of some countries will automatically be given legal aid, while citizens of other countries will not. Sometimes there have been manipulations by one of the partners to ensure the other will have less power or restricted access to resources or money (mine, for instance, refused to put my name on our joint bank account, and I did not have the residency status to open an international currency account for a long time, and he had done other things to make sure I had much less power in the relationship once we had moved to his own country). It is unfortunate that none of this seems to be taken into account in Family Court, where they hand out shared parenting orders like candy to parents who have sometimes had these toxic dynamics going on.

  5. Observer says:

    They do not hand out shared parenting orders like candy.

    The parent opposing such an order has to demonstrate years of poor behavior before that happens.

  6. Ann says:

    I found Wendy’s comment interesting as it shows that many resident parents are unaware that the CSA is not the only avenue for child support. Schedule 1 not only allows for an application in the case where the NRP is outside the realm of the CSA (ie not living in the UK) but it also allows for “top-ups” to the CSA if you want additional help with say school fees, carer’s allowance, help with housing from the NRP irrespective of whether you were married or not. It is the same process as working out the finances in a divorce but the key thing would be the needs of the child rather than the respective incomes/assets of the parents. It uses the CSA as a guideline but will take all aspects of the childcare costs into consideration. I also discovered that whilst a Schedule 1 application done as part of divorce can only have arrears backdated to the time of application, when it is used just to determine child support a lump-sum can be requested to take into consideration ALL the child’s costs…eg buying cots, baby clothes etc even pre the birth of the child . And lastly going back to the international theme of this blog the resulting order can also be used to enforce child support internationally as well as domestically via REMO. As Marilyn said earlier much better to fight a legal battle on home turf rather than at the end of the phone with a foreign court.

  7. Andrew says:

    How have you answered Wendy’s question?
    The first bit I mean, in your article you said “according to the article”. Your source was wrong and this is what Wendy is pointing out at the start of her comment.
    She went on holiday and decided to stay, now denies the father contact (also I have heard it was her who decided on the split).
    The first articles on this came from Ms Porter’s side, quoting her friend and nothing from the other side. Perhaps the clue was there, always question your sources.

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