Just how did two children end up in Alaska living with their stepfather whilst both parents are in the UK. John Bolch examines the case of Ford v Halil & Another.
“Aside from inflicted child abuse or the ravages of war, it would be hard to devise a more emotionally damaging set of facts than those which currently surround the children with whom I am concerned.” – Holman J
Unusually, this post, about a family law case, will not really be about the decision the court made in the case. In fact, no final decision has been made yet. Instead, this post is solely about the facts of the case, which led Mr Justice Holman to begin his judgment with the above words.
The case is Ford v Halil & Another. It concerned two children, now aged nearly eight and seven. Their parents, who are both British, lived together in England until their relationship broke down in early 2012. The children then remained living with their mother.
The mother then met and formed a relationship with an American man who lives in Alaska. In 2014 the mother became pregnant by that man and she and the man married. The mother then applied to the court for permission to relocate with the children to Alaska. In May 2015 the court refused the application. And then the mother decided to take matters into her own hands. In October 2015 she took the children to Alaska, without the agreement of the father, or the permission of the court.
The father immediately began proceedings in the High Court. The children were made wards of court and the court ordered the mother to return them to this country. The mother did not comply with the order, claiming that she knew nothing about it, having not been served with it.
Of course, one would have expected the father to have issued an application in America under the Hague Convention for the children to be summarily returned to this country. He did not do so, claiming that he had been informed by a lawyer in America that he would have to pay their charges for acting for him, which he could not afford. In fact, as Mr Justice Holman pointed out: “under the Hague Convention legal services are required to be provided free of charge to an applicant in the country in which the application requires to be made.”
And so matters remained there until steps were taken by the authorities in this country for the extradition of the mother to England to face criminal proceedings under the Child Abduction Act 1984, the father having previously notified the police of the alleged abduction of his children.
Learning of this, the father went back to the High Court in September 2016 and obtained an order stating that if and when the mother was arrested, the interim care and control of the two children should be granted to him, and he is at liberty to fetch them from Alaska.
In January this year, the mother was taken into custody by the American authorities, and she was extradited to this country on the 10th of April. She remains in custody in this country, awaiting trial.
The mother’s solicitors, concerned that the father might travel to Alaska to recover the children on the basis of the order made in September 2016, successfully applied to the High Court to have that order suspended. And so the matter went before Mr Justice Holman. He asked, and answered the obvious question:
“Both parents are here before me in London, but where are their children? The answer is that the children continue to live at the address in Alaska, which is their settled address, with the mother’s husband and with their almost three-year-old half-brother.”
He went on:
“As I said at the outset of this judgment, it would be hard to devise a more emotionally damaging set of facts for two young children. They have had no contact whatsoever, even by telephone, with their father for over two-and-a-half years. They were able to see their mother when she was in custody in America, but they have not lived at home with their mother since January of this year and, of course, have not seen her at all since she was extradited to England on 10 April, now a month ago.
“Further, I have been told today that, because the alleged offence involves the children, the prison authorities here in England do not permit the mother to have any communication whatsoever with the children. These children, therefore, find themselves far away from here, completely cut off from both their parents, and they cannot have the least reassurance as to when they may see their mother again.”
As he pointed out, it was “a matter of the utmost regret that, for whatever reason, the father did not press on with his contemplated application under the Hague Convention in late 2015.” At least then things may have been resolved some time ago.
So the question was, what to do? It would appear that the children were now habitually resident in Alaska, and therefore any decision about their future should be taken by the Alaskan courts. However, there was a problem with that: the mother is in custody in this country. Mr Justice Holman, therefore, decided that, for the time being at least, the proceedings in this country should continue.
However, the previous orders made by the High Court were clearly no longer appropriate, so he discharged those, and made the very unusual order that the children should continue to live in the care of their stepfather.
The case serves as an illustration of how things can go terribly wrong if a parent takes the law into their own hands (and also, apparently, if a parent, i.e. the father, obtains bad advice). The children are now in a sort of ‘limbo’, living half a world away from their parents, having been looked after by neither of them for the last four months, having had no contact with their father for over two and a half years, and now also cut off from their mother. Let us just hope that, one way or another, this awful situation is resolved as quickly as possible.
You can read Holman J’s full judgment here.