Marilyn Stowe Blog

What happens when an international custody battle looms?

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…