Question 1: Explanation of the High Court’s order for child abduction and Hague
The new client Veronique Adjani came to V.S Law firm to get solutions against the Child abduction and Hague case file against Veronique from her ex-husband Tomas for wrongfully removing Tomas's child Luiz, without informing Tomas. Therefore, the main question is whether the High Court will apply the legal steps based on the “Civil Aspects and the Child Abduction 1980” from article 12, and give the order to Veronique to come back to Croatia with the child Luiz based on Tomas's application.
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IRAC method
Using the IRAC method the detailed analysis will help to understand the situation and analysis of the Hague conventions applied for the new client Veronique Adjani, which are discussed as follows.
Issue
Tomas Greco applied a legal application against Veronique Adjani for the Hague Convention under “Civil Aspects and the Child Abduction 1980” for returning Tomas's son Luiz to Croatia by Tomas’s wife Veronique. Therefore, the key issue is to address whether the High Court gives legal permission to Tomas for child abduction and Hague to Luiz and Veronique Adjani.
Rule
The rule of the “1980 Hague Convention on the Civil Aspects of International Child Abduction” may be applied to Veronique Adjani for child abduction and the Hague Convention for Tomas’s child Luiz. The High Court will hear apply article 12, of “Civil Aspects and the Child Abduction 1980” to identify whether Tomas’s ex-wife Veronique wrongfully retained or removed the child, Luiz a 6-year-old child from his father Tomas. This article is applicable for the child who is under 16 years old. The high court also analyzed the real situation based on legal evidence from Tomas and Veronique and then decided to apply the regulation of Article 12 for Luiz's protection.
Analysis
Veronique Adjani and Tomas Greco were in a year-long relationship and had six-year-old children Luiz lived in Croatia. However, the relationship between Tomas and Veronique is not working so Tomas and Veronique agree to end the relationship. But Veronique shift with her six-year-old child Luiz to a flat nearby Croatia but has existing contact between Luiz and Tomas through face-to-face and telephone calls. Veronique expressed that Veronique faced anxiety and depression for which Veronique received mental support from a female British colleague Jo and was involved in a sexual relationship with the British colleague Jo. Analyzing the evidence it is also found that Veronique had to face mental torture and threats from Tomas’s family and Tomas’s sister painted in front of Veronique’s door with an abusive . Luiz also liked Jo and did not want to go to meet Luiz's father Tomas due to abusive words applied to Luiz's mother. Luiz also has to face the social embrace from a group of friends at Luiz's school which also highly affects his mental peace. Therefore, Luiz is unwilling to go to school which damages the social involvement of Luiz. Another big piece of evidence for shifting Veronique and Luiz to England is due to threats received from Tomas. Veronique lodged an FIR however, the police did not take any relevant action to give protection to Veronique and Luiz. Therefore, Veronique decides to leave Croatia with Luiz to avoid the harassment from Tomas and shift to London without informing Tomas. In this way, Veronique wants to overcome the harassment and the mental trauma received from Veronique. In this situation article 12, of “Civil Aspects and the Child Abduction 1980” can be applied against Veronique for wrongfully removing Tomas’s child Luiz from him.
However, Veronique can also apply the evidence against Tomas for the threat and mental torture, depression, and anxiety received from Tomas during his married life. Veronique can also provide the second piece of evidence in this situation that discusses the recovery of Luiz from depression and trauma in London. Veronique can also provide evidence of success factors of selection in the football team at the new school in London. Veronique also mentioned that the shift to London helps to forget the bitter memories and experiences of Veronique’s ex-husband Tomas. Tomas can also highlight Veronique’s same-sex relationship with her British colleague Jo for which Luiz can be negatively influenced by Luiz's mother. However, in that case, the High Court must give justice based on a sensitive analysis of Luiz's future benefits.
Veronique can also apply the act of section 15 and Article 13(b) to protect against the abduction of Veronique’s child Luiz for giving the protection for mental health and the child’s safety and health conditions for repatriation to the old place of Croatia. Veronique can apply against Tomas’s application to the High Court based on the threat received from the Tomas and Tomas family.
Conclusion
This conclusion section provides the probability of the high court’s order against Veronique Adjani based on Tomas complaint for child abduction and Hague to Luiz to other states of London, without informing Tomas.
Explanation of the High Court’s order
Based on Tomas’s complaint against Veronique Adjani for child abduction and Hague of Tomas's child without informing Tomas, the high court may put an order to return Veronique and the child Luiz immediately to Croatia. Tomas can apply article 12, of “Civil Aspects and the Child Abduction 1980” from where Tomas can apply the wrong retention or remove Luiz from Tomas, without informing him.
Discussion on legal options for making such an order
The legal options of Veronique can be applied based on legal evidence of section 15 and Article 13(b). However, Veronique Adjani can also implement an injunction against Tomas by following the act under section 15, “15.1 Grave Risk of Harm, Article 13 (b)” and “15.2 Child Objection Defense, Article 13(2)”. Applying section 15.1, Veronique can apply the section 15 by which Veronique can refuse to come back to Croatia based on evidence regarding mental torture, anxiety, mental depression, and threats received from Tomas's family. This injunction also helps to address the High Court against the actual scenario and harassment faced by Veronique and her child Luiz.
Remedies for domestic abuse ordered by the High Court
Veronique Adjani can also applied for domestic remedies against the abuse and Hague case from Veronique Adjani’s ex-husband Tomas. Veronique Adjani can complain to the local police station and get help from the local state against the habitual residence.
Therefore, the above section critically discussed the legal consequences faced by Veronique Adjani from Tomas for child abduction and The Hague of Luiz to London.
Question 2: The balance struck between family life autonomy
Discussion on how the draconian outcomes were considered in the case of the “public child law”
The “Child Act of 1989” discussed the safeguard and the children's protection against any kind of draconian outcomes under the “public child law”. Based on this “The “Children Act, of 1989” addressed parental responsibility and balance between any kind of family life’s autonomy. This act is applicable in the case of maintaining child welfare from public interventions. The local authority here plays an important role in identifying the safeguard principles for children's welfare in society. Based on this “Child Act 1989” act, the local authority may have some specific responsibilities and duties for any kind of needs from the family side of the children. Therefore, in case of any type of draconian outcomes, the local authority, and government body can provide safeguards to the children and the children’s families to protect from the needs and requirements.
The “Child Act 1989” also gives the importance of balance between non-intervention from the states and intervention from the states. This act also discussed the state intervention for maintaining the autonomy of the respecting family. This act also discusses the role of the family life balance between family life balances. However, this act also mentions the scenario in case the state might fail to intervene for child protection.
The legal sources of the strike between the children's protection and family life
The draconian outcome
The primary sources of the “Child Act 1989” are associated with the local authority, government body, and local governments based on which the state and the regulation authority can guide for the parental responsibility by which the protection of the children can be maintained. Various issues associated with the “Child Act 1989” related to child marriage, the adoption of children, child labor problems, and child begging are the main problems that create social harm. Therefore, the presence of the government regulatory authority or the legal authority helps to protect from all types of issues associated with the “Child Act 1989”.
Child abuse case
One of the most popular incidents related to the “Child Act 1989” is child abuse incidents. In the absence of the “Child Act 1989” and the legal authority, the child may face abuse for which the children and the society can get harm from the entire incident. Child abuse can also include emotional trauma, physical injury, and even death of the children. In such cases, the interventions from the local authorities, government, and regulated agencies are the main authorities.
Example of Baby P’s case
Peter Connelly was the first victim under the “Child Act 1989” in 2007. This incident is a wide example of the failure of the protection of the children against child abuse from the boyfriend of Peter’s mother in the UK region. However, the healthcare professional and the social service profession cannot give protection from abuse incidents from child abuse protections. This case is the evidence of the “Child Act 1989” case, where the children were found two months later at the home. This also indicates the inadequate family structure and intervention of family life. The victim was found injured and fractured ribs with a broken back. Peter was attacked by his mother’s boyfriend for which the intervention of legal authorities or the governmental regulatory authorities was required. Child death in this situation occurred due to the guilt of the protection from the social workers.
Therefore, the above two incidents show the draconian outcomes of the Child Protection Act from the “Child Act 1989”. Therefore, family autonomy plays an important role in protecting the children from any kind of abuse, and physical harassment from the families.
The implication of the evidence
The above incidents of Baby P’s case have a major implication for understanding the situations of the “Child Act 1989” and the role of family life in child protection. The local authorities play an important role in this situation. The local authorities means the local government, government body, and local council, provide different types of public services in a particular local region or the geographical area by which the children can get protection based on the “Child Act 1989”. The above incidents also imply the imbalance between the non-intervention and the intervention in the case of the family life balance. However, the absence of the proper intervention of the state has a major impact on the balance between child protection from any type of abuse, torture, or mental harassment. Therefore, this above situation also identified the case of the family life balance and the state intervention in child protection measurements.
The statement of “Child Act 1989” refers to the concern for protective activities that disrupt family life and support family autonomy. It states that the investigation of the legal development of the law seeks to strike a balance between competing welfare. The best benefits of the child ultimately take precedence over the family. Section, I (1) of the “The Children Act 1989” is the primary source that establishes the best welfare of the child as the primary concern for courts in public children proceedings. It may disrupt Article 8 ECHR's rights to family life if necessary to protect the child.
According to the 2007 House of Lords Case that emphasized that significantly interfering with family independence, the care arrangement was justified because of the potential emotional damage to the child if they stayed with their family. This example suggests that the best welfare of the children struggle with family independence. Protecting the children will lawfully exceed family privacy, even if family life requires involvement. This supports the priority of children's welfare over family liberty.
Under Section I (5) The Children Act 1989 requires the court to apply the principle of minimal intrusion before making orders interfering with family liberty. That refers to providing family support, taking away children, and avoiding penalties. The order also includes procedural safeguards such as the rights of parental involvement under Section I (3) (a) that added to the balance between liberty and the best welfare of the children. But courts should also consider proportionality, to avoid unreasonable harassment consequences. But Section 31(2) of the Children Act focused on the problem rather than its ability to create doubt as to where the suitable balance between welfare and independence lies.
The Child Act rights involvement that aims to promote independence in civil child law matters. It records that children can have guardians representing their views and benefits. However, the order states that the case law Re W [2016] states courts of appeal involving civil children law proceedings under The Child Act 1989. It emphasized that the welfare of the child remains the initial concern of the court rather than the children's wishes. The children's right to participate and children's interests ultimately win out over liberty. The Civil Children Act provides greater power to occur in family life, carrying risk as well as penalties that are superior to family freedoms. It does recognize practical law, precedent, and practice that courts strive to achieve consistency to handle the protection of the child with respect for family privacy and independence.
Ultimately, there is a conflict between welfare and independence and the welfare of the children that will take over and be given the general welfare principle. So when a balance is required, children's safety becomes dominant as it inevitably conflicts with family privacy. Children's participation provides some protection in terms of autonomy but welfare remains the principal. The universal legal context guides the search for melodious protection and freedom, but ultimately there is a compulsion, and the interests of children are overcome.
Discussion of public child law and the issues raised by legal sources
Public Child Law
Public child law states the duties under English law include the Child Kidnapping and “Care Act in 1985” which implements the Hague Convention, and “The Children Act 1989” under Section I. That providing that the child should welfare is the initial concern of the court. The case law emphasizes that the exceptions under the Hague Conventions relating to the return of a child to their own country or ordinary residence are interpreted narrowly and it is aimed at preventing child kidnapping on the edge of custody arguments. There is a concern between the rights to immediate access to child welfare and wider public policy that is required to support formal arrangements for interstate custody.
The strong evidence of the mental and emotional damage on his return will be an important factor that indicates that Luiz will suffer seriously on their return to Croatia including their health problem, Tomas's abuse and weakness that forms Luiz's disability and its impact on Veronique's mental health. The English Court has limited powers to protect Luiz if a return order is compulsory. The policies can be explored by Tomas around the care plants. However, the court cannot directly apply English civil children's law regulation in the “Children Act” of Section I when Luiz returns to Croatia.
The limitation of the English Court of Child Law in its international role. The current loss of an individual child means no restoration and the long legislation and national policy that implication of legal child custody preparations near this application of law can govern welfare overcoming concepts in emergencies. The complex situation of private or public international legal conflict over the welfare of children is evident.
Issues
The main legal issues under the Hague Convocation on child kidnapping arise under English Child welfare laws like the “Childcare Act 1985” and “Children Act 1989” under Section I. The legal argument will focus on whether Veronique's transmission of Luiz from Croatia to England was unreasonable under Article 3 of the Convention. The possible factors are whether Croatia was Luiz's usual residence immediately previous to transportation. and whether Tomas was governed by Croatian law as Luiz’s father. If Tomas starts a prima facie case of illegal release, Veronique must display that one of the narrow exceptions applies, i.e. if returns, there is a high risk of sling Luis in Article 13 (B).
In assessing high-risk damage return, then the court will consider:
Objection to the return of Luiz in Article 13(2).
Evidence of Tomas has abused Veronique and Luiz
Luiz specifies the weakness as a child with additional requirements.
The impact of returning to this situation on Veronique's mental health.
The vital case Re E (2011) states that immediate child welfare considerations under the Hague Convention can be based on broad international law and national policy objectives of supporting and obstructing lawful international custody arrangements. Despite the obvious child welfare issue here, Veronique faces a difficult battle. The court must balance Luiz's immediate interest with the public policy goals of guaranteeing custody rights and preventing international kidnapping. Also, there appear to be restrictions in English law in Section I of the Children Act to protect Luiz extraterritorial. The case assembles at the complex intersection of public and private international law on transitional child welfare.
Implications from the evidence-based scenario
In the context of public child law implications with international custody disputes. It demonstrates that despite the risk to the children's well-being, legal outcomes that are prioritized based on foreign policy objectives over immediate security that can exploit children's insecurity are seriously threatened. If they return to Croatia, the implications for Luiz will be shocking to the current removal from their place of residence in England which makes progress developmentally in the “Children Act 1989” of Section 1(3)(a), they suffering emotional distress from suffering emotional distress from his offensive in the “Article 13b” of Hague Convention. It is compulsory to remove a disabled child from satisfactory health, social, and educational support systems in agreement with his or her requirements. Strong evidence suggests that returning to Croatia after experiencing domestic abuse and harassment brings a higher risk of emotional, emotional, and even physical harm but such quickly it can be traumatic, especially for an older and disabled child. When Veronique, forced back into the biased situation, escapes, now faces the serious allegations of a departure from her partner, and a probable decline in her mental health situation and parenting abilities equally get up for his special guardian.
The serious consequence tracks counter to the child-centered welfare of the principles embedded in English Civil law. But international restrictions limit the national application of services under the legislation of the “Children Act”. The risks are explicitly reported to the United Kingdom authorities and are not a national body of CAFCASS. The goal of the foreign revolves around the interstate development of legal rights to custody to immediately turn on to the protection that is required of the various vulnerable children present. The policy of the implications for the efficiency of the public children's legal system in the “Children Act 1989” protects the helpless children in emergency conditions. Where danger arises overseas, the English court may be tried with different international laws and regulations like child rights and preventing kidnapping. The welfare of the children in the theory has an independent status, the main concern under Section 1 of the “Children Act” is that principle has limited weights. The English child welfare law is based on the principle that the best interest of the children will succeed, the reliable application of this principle across boundaries is an ongoing challenge where those interests are with a child the rights and goals of avoiding child loss conflict. And they can have serious consequences for the helpless child.
References
Book
Gill AK and Begum H, Child Sexual Abuse in Black and Minoritised Communities Improving Legal, Policy and Practical Responses (Springer International Publishing, Imprint: Palgrave Macmillan 2022)
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Website
Oas.org, (2022), Available at: https://www.oas.org/dil/Hague_Convention_of_25_October_1980_on_the_Civil_Aspects_of_International_Child_Abduction.pdf Accessed on: [14.02.2024]
