Legal Precedent for a Situation Gone Wrong

Legal Precedent for a Situation Gone Wrong Influence of the courts over child custody arrangements in the case of a divorce is low to non-existent. There is a persistent expectation that the parents will come to an agreement about matters related to children, and it is generally not considered beneficial to engage the courts.

It is important for disputing married couples to understand that there are three separate issues embedded in a divorce situation: 1) The actual divorce which concludes with a decree absolute; 2) Division of marital assets and financial provision for the spouses and children, which is referred to ancillary relief; and 3) proceedings focused on the custody / residence of children, contact arrangements with non-custodial parent, and so forth[footnoteRef:1]. [1: Terry & Co Solicitors, The Laurels, Shadoxhurst, Ashford, Kent, TN26 1NL United Kingdom.

Retrieved from http://www.terry.co.uk/men_div.html] Given this tendency of the court for a hands-off response to divorce proceedings related to children, Perry's initial reaction of alarm is understandable. Faced with the prospect of abduction of his child, Rose, Perry's attorney -- had he been given opportunity -- could have relied on a number of statutes to provide relief to Perry.

If the abduction is anticipated but had not yet taken place, specific remedies of the court are available to Perry's attorney, including applying ex-parte in the High Court for the following: A prohibited steps order An order for delivery up of the child's UK passport by authority of Circuit Judge An order restraining issue of passports; An order restraining the other parent from removing a child from his residence An interim residence order A bond for return of the child after contact[footnoteRef:2] [2: http://www.reunite.org/edit/files/articles/Child%20Abduction-Case%20Management.pdf] Moreover, the statutory framework related to child abduction and custody is multi-layered and comprehensive, and it includes the following statutes: Supreme Court Act 1981 Child Abduction and Custody Act 1985: Hague Convention on Civil Aspects of International Child Abduction 1980 European Convention 1980 is superseded by Brussels II Revised EC2201/2203 Family Law Act 1986 as amended 2005 Human Rights Act 1988 A number of rules also apply to child abduction and custody matters, including: Family Proceedings Rules 1991, 5-7; Civil Legal Aid (General) Regulations 1989, Regulation 14; Anglo Pakistan Protocol January 2003 (Red Book P.

2647). Forsaking the lost opportunity for preventing a child abduction and settlement of marital discord, attention must be paid to Perry's battery of his wife, Naomi, which is a criminal offense distinct from assault, an offense that creates apprehension of the immediate commission of battery.

Perry can be said to have committed battery since his behavior meets both prongs of the test: 1) The mens rea (fault element) can be proven as Perry acted intentionally or recklessly[footnoteRef:3] and 2) Perry could foresee that the result of choking his wife could result in her loosing consciousness or worse, and despite what is virtually a certain consequence of action, Perry nonetheless acted[footnoteRef:4]. Under English law, the R. v. Woollin [1998] decision applies to statutes related to murder but is commonly accepted as intent throughout U.K. criminal law.

Indeed, with regard to intention and reckless behavior, the standard is that when a person acts and is aware of the associated risk with that action, but act regardless of this awareness and when no reasonable person would act, that person has acted recklessly[footnoteRef:5]. Battery is not held to be a statutory offence under section 39 of the Criminal Justice Act 1988. However, case law[footnoteRef:6] does hold that battery is a statutory offence.

The decision was highly criticized and, in addition, the Divisional court expressed the obiter opinion that battery should continue to be considered a common law offence[footnoteRef:7]. [3: R. v. Venna [1976] QB 421.] [4: R. v. Woollin [1998] 4 All ER 103.] [5: R. v. Cunningham [1957] 2 QB 396.] [6: DPP v. Taylor, and DPP v. Little [1992] 1 QB 645, 95 Cr App R. 28.] [7: Haystead v. DPP 164 JP 396, DC.] The Offences against the Person Act 1861 does not contain a definition of assault or battery, however, non-fatal offences against the person are derived from this law.

Common assault includes both assault and battery together, and results in bodily harm that ranges from "transient and trifling"[footnoteRef:8] to wounding to grievous bodily harm. For the more serious kinds of battery, a defendant may be more culpable for their behavior than under other circumstances.

That is to say that, in the case of most offenses against the person, recklessness is sufficient for offences against the person, but recklessness is insufficient for crimes of intent since a defendant will have foreseen the risk of injury without having intended for the risk to be manifested. [8: Offences against the Person Act 1861] A maximum penalty of six months in prison is associated with a Common Assault offense.

Assault with Bodily Harm is generally charged when the overriding circumstances and the seriousness of the injuries suggest that the offence merits more than the standard six months of imprisonment and where the prosecution is intending to represent the case as suitable for summary trial. Although Perry could be charged with a count of attempted murder, but the courts are likely to be highly critical of such a charge absent clear evidence that an intention to kill was held by the defendant.

Section 6(3) of the Criminal Law Act 1967 applies when possible alternative verdicts may be.