Children still half a world away: the case of Ford v Halil & Another is to be dealt with in Alaska

Man looking out of the window

Back in May, I wrote here about a troubling case in which two children had ended up living half a world away from their parents. The case has now come to a conclusion, at least in the courts of this country, and I thought I would provide an update.

The ‘concluding’ judgment was handed down by Mr Justice Holman on the 12th of July. He did not set out the background to the case, having already set it out in his earlier judgment. For the benefit of readers who have not read that earlier judgment, or indeed my previous post, the background, in a nutshell, was as follows.

The case concerns two English children whose parents separated in 2012. The children remained with the mother, who subsequently married a man who lives in Alaska. In October 2015 she took the children to Alaska, without the agreement of the father, or the permission of the court. The father took steps for the return of the children but did not make an application for their summary return under the Hague Convention.

In January this year, the mother was arrested by the American authorities in connection with alleged child abduction, and subsequently extradited to this country in April. She remains in custody in this country, awaiting trial. Meanwhile, the children remain in Alaska, in the care of their stepfather.

As Mr Justice Holman then explained, the children were clearly habitually resident in Alaska, and therefore it was up to the Alaskan courts to deal with issues relating to their welfare. However, the obvious problem was that their mother was incarcerated in this country, and thus Mr Justice Holman ordered that the proceedings in this country should continue for the time being. The situation was clearly entirely unsatisfactory, and it led Mr Justice Holman to comment:

“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.”

As Mr Justice Holman’s second judgment explained, things have now clarified a little.

The mother has now pleaded not guilty to the various criminal charges in relation to the alleged child abduction. She remains remanded in custody, but a trial date has been fixed to take place in September. The children remain living with their stepfather in Alaska. He, the mother and the father have now filed detailed statements with the court, thus giving Mr Justice Holman far more information to ‘work on’.

The statements indicated that the children were now well settled and flourishing in Alaska (according to the stepfather), but that the elder child had serious negative feelings towards her father, a fact confirmed by a therapist that the child is seeing, but denied by the father.

Obviously, Mr Justice Holman could not make any findings in relation to this allegation. However, he said that the plain facts were that the children had now lived continuously in Alaska for almost three years, and there was evidence which, on the face of it, is credible from the stepfather describing the extent to which they are now settled in Alaska. The father, for whatever reasons, had not made an application under the Hague Convention, despite knowing that he could do so.

In the circumstances Mr Justice Holman said:

“It seems to me plain as a pikestaff that these children must now be habitually resident in Alaska and must have been so resident for an appreciable period of time.”

Thus:

“It is, frankly, impossible for this court many thousands of miles away, and without the availability of forms of enquiry, such as Cafcass, to start embarking on decision-making here in relation to these children.

“Accordingly, on the basis of the long passage of time, and of the fact that these children must now be habitually resident in Alaska, I will order that these proceedings and all orders within them of a continuing nature are today dismissed and discharged and come to a complete end.”

Therefore, any future welfare decisions relating to the children should be made by the courts in Alaska.

Obviously, the judgment is a warning to any ‘left behind’ parent that if their children are abducted abroad by the other parent then they should act swiftly to seek their return.

You can read the full judgment here.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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7 comments

Jon - August 1, 2018 at 10:44am

In a way this sums up one or more of the failings of the family court. In so far as you do something without permission but due to the slow court process and inability to act swiftly the change becomes permanent as the children become settled.
Which is why mothers just move, knowing full well our family law is incapable of doing anything to prevent. It’s a shambles, abuse of the children and the other parent. Unfortunately this will continue.

Helen Dudden - August 1, 2018 at 11:01am

I have personal experience of a similar situation that went with Habitual Residency. Even, a child who is English can end up in a similar situation.
Heart breaking and destructive to those children. I also know, of the powerless situation of our legal system when such events happen.
This is close to home for me, I remember my efforts to remedy the situation, I wrote articles, and came to London. Joined Reunite International. In the end, I, the grandparent, was the only allowed visitor.
The Hague Convention fails, and when it fails, this can be an outcome.

Helen Dudden - August 1, 2018 at 11:14am

I know, I have written much on the case of Beth Alexander and her twins in Vienna. This was not The same, but a manipulation of the law.
The British Government tried, but with international law it can be slow to the extent this is going to be the outcome.
I know personally, the frustration, and how upset a child can get. I will add no more.
As my MP and MEP stated, nothing they could do further. I went to the Justice System in two countries and pleaded.
This was my introduction to international law, my education began many years ago, as with continued study.
How long is this situation allowed to continue, the law is used in a way to bring injustice?

Andrew - August 1, 2018 at 1:47pm

It would not be the first time or the last that a stepfather was the first thoroughly decent individual in a child’s life.

Helen Dudden - August 1, 2018 at 6:04pm

Andrew. Where, does it say their father is unfit? Lots of parents find it difficult to understand international law.
Obviously, it’s far from satisfactory. Do I understand correctly, that a stepfather could not instruct medical treatment for the children? Parental Responsibility, is one question, does the stepfather have the same right? These are not his biological children, did he adopt?
This is equally as unjust as my personal situation, as the situation that exists for Beth Alexander and her twins. I feel, it’s almost child abduction on a different level.
Cafcass, and our court system is inadequate in this type of Family Law. This is not law, this illegal retention on the presuming it’s legal.

Bu - August 1, 2018 at 6:17pm

It’s at this time of year that people start thinking about summer holidays and booking whatever is available after the mad rush. If both parents have parental responsibility, and there are no child arrangements orders or any restrictions in place, then neither of you can take the child abroad without the written consent of the other person with parental responsibility. If they refuse to give consent, you will have to apply to Court for permission to travel abroad with them.
She took the children to Alaska, without the agreement of the father, or the permission of the Court. The father took steps for the return of the children but did not make an application for their summary return under the Hague Convention. Question is how did she pass UK Border controls ? Was she going on holiday for less than 28 days ?
Some airports are more thorough than others, but the person should obtain a letter from the person with parental responsibility allowing them to travel and ensure that letter includes their contact details and always taking child’s birth certificate and if necessary, any Court Order.
Also the elder child had serious negative feelings towards her father, a fact confirmed by a therapist that the child is seeing. This is probably due to Parental Alienation which has taken place over this long length of time.
The UK family law needs to change and the various authorities need to be more complacent.

Helen Dudden - August 1, 2018 at 9:55pm

Bu. There were some lax attitudes on passports, and control’s at one stage.
Am I correct in understanding, that an illegal action has turned into a legal situation? The Alaskan Court, has taken an illegal situation, and turned it into a legal situation.
You are correct, what has been said about the children’s father? I know personally children get very confused.
Will the mother have committed Child Abduction or a more serious Kidnapping?
Could an Appeal happen? How can you exclude the children’s real father? There seems to be no reason, other than slow to act.
I find this case so distressing, because, when you have experience of the complex issues and cost involved, it’s frightening.
I have made comments to the Hague Judge’s, at the meetings held on a regular basis.
There was a pro bono completed for ECAS several years ago on this very subject. Freshfield’s were the lawyers involved. It suggested, closer working together within the EU. Court to Court, Judge to Judge.

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