International Child Abduction (Case No. 1)
Divorced mother and father were residents of U.K. (Scotland). Father abducted 3-year old child to Middle Eastern country where he was granted residency as a “critical skills worker”. Mother sought relief through the Court and was awarded primary residence for the child. The father was Ordered to return the child to the U.K. immediately. Father was given every opportunity to return and despite giving promises to the Court that he would return with the child – each promise went unfulfilled. The case went on in the U.K. courts for 3+ years without either parent yielding their position. Each parent spent in-excess of £35,000 on legal fees in the U.K. plus legal fees in the Middle Eastern country where the father had attempted to establish residency for an additional £13,000.
Miceál O’Hurley was consulted after each parent exhausted their savings and lawyers/solicitors in both countries claimed the case was at a “standstill” due to differing jurisdictions rendering competing Orders. Prosecutors in each country were at odds and Interpol offered no assistance as they did not believe the child was in immediate danger or subject to “further kidnapping”.
Miceál immediately recognised the father had entered the Middle Eastern jurisdiction during the commission of a crime. He quietly and quickly worked with diplomats and officials in both countries to resolve the matter administratively. Citing British law, Miceál sought the most expedient return of the child using administrative law and adhering to the principle of judicial economy. Reasoning that the child could be subject to “further kidnapping”, the U.K. withdrew the minor child’s passport. They also withdrew the father’s passport as it was in the interest of furthering justice and accordingly, was not an infringement on citizenship rights:
British citizens can be refused a passport or have their passport withdrawn
British passports are issued at the discretion of the Home Secretary under the Royal Prerogative (an executive power which does not require legislation). They can be withdrawn or withheld using the same discretionary power.
Withdrawal of passports is not the same as withdrawing citizenship. Someone whose passport is withdrawn remains a British citizen but their overseas travel is restricted. Home Office policy states this will be done “sparingly”, such as where the person intends to travel abroad to engage in terrorism.
There is no right of appeal against having a passport withdrawn, but the person can ask for an internal review by the Government or apply for judicial review by a judge.
The Middle Eastern country that had granted the father permanent residency expelled the father for not maintaining a valid passport and charged him with various crimes for failing to disclose that he was in the commission of a crime when he entered the jurisdiction. The minor-child was also expelled. The police took both into custody and drove to the U.K. Embassy where the father and daughter were separated. The mother was re-united with her daughter at the Embassy and the child was issued an emergency travel document allowing her to return to the U.K. The mother and child boarded the first available flight to Heathrow International Airport and returned home – reunited after 3+ years.
The father was issued an emergency travel document by U.K. consular officials allowing him to travel only to the U.K. He was then escorted to the local police station for processing for the crimes related to obtaining permanent residency by deception. He had to post significant cash bail and was then escorted to the airport where he boarded a flight to Heathrow International Airport where he was promptly taken into custody in furtherance of the committal order related to the child abduction.
After 3+ years, legal proceedings in 2 countries, and thousands of Pounds Sterling spent on legal fees and numerous hearings, as well as countless hours of time spent by the court services, Home Office and Foreign Office officials, Munster Mediation solved the problem administratively within a month. Working with diplomats in two jurisdictions to implement a plan that furthered justice, the solution was quick and ensured the father would not engage in further flight from justice with the child and implemented a solution that allowed the child to avoid being taken into State care in a foreign jurisdiction.
Marital Separation (Case No. 2)
Husband and wife married 21-years. In the course of the marriage they raised 3-children, purchased 4 residential properties, established 2-businesses and created an estate with considerable cash, investment and pension assets.
The parties were in dispute as to whom would remain in the primary marital residence as each maintained a home-office in the house to administer their respective businesses. The house was a 4-bedroom residence with a double garage over which 2-separate, well-furnished home offices had been built.
After the matter was before the Court on several occasions with the judge encouraging the solicitors to prevail upon their clients to find a solution before he ordered the assets sold and equitably divided which he admitted would be of great loss and inconvenience to the parties (moving, capital gains taxes, purchase at high-end of market and now experiencing a dip in property values), the solicitors referred the parties to Munster Mediation.
Working with the parties, their solicitors, estate agents and financial advisors it emerged that a sale of the real estate assets would create a significant financial strain upon the parties at a time when each were approaching retirement and would no longer be in a position to replace income in time to enjoy a secure retirement. In working through the issues with the parties, Miceál assisted the parties in realising that the home offices above the garage could be easily and cheaply converted to 2, 1-bedroom apartments without further planning permission. With 2-bedroom in the primary residence vacant with the oldest children having graduated from university and living on their own, one parent could remain in the marital home with the remaining child still in-university and move their home-office into one of the spare bedrooms. The positive rent-roll from the 2, 1-bedroom apartments allowed the other parent sufficient income to rent a commercial office located near one of the other residential properties the parties owned.
In the end, the parties were able to divide their estate without selling assets at a bad period for housing values, maintain offices at home or very-near to home, create a positive cash-stream to offset costs and the parties returned to court with a global settlement on their marital estate, preserving their assets for retirement and were granted a separation by consent from the judge who congratulated them on cooperation and averting a very costly liquidation of their marital assets that may have been ordered by the judge to create a “clean break” between the parties.
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