So no one told you life was gonna be this way…

The first in a series of blogs exploring the 90’s cult classic Friends through the lens of a Family Lawyer.

Ross Gellar should have spoken to a Family Lawyer

Warning – This blog contains spoilers.

For anyone familiar with the Friends TV series, you will likely remember the last couple of episodes in the final season where Ross makes numerous ridiculous attempts to bribe Rachel’s boss to stop her from moving to Paris with their daughter, Emma.

Rather than bribing someone with fake dinosaur eggs, Ross should have spoken to a family lawyer…

The following is a list of some of the key considerations that Ross, and indeed Rachel, should have had regard to and taken advice on, from a Scottish perspective.

Preventative Measures

Firstly, no parent can remove a child outside of the UK without the other parent’s consent.

When faced with a situation where Rachel was due to fly out with their daughter to Paris in a matter of days, Ross could have raised a court action seeking an interdict.

An interdict is a preventative order which can be used to stop a parent from removing a child out of a specific location without the court’s or the other parent’s consent.  Indeed, interdicts can even be used where there is a threat to relocate a child to another part of Scotland.  Such orders can be raised very quickly and can be sought on an interim basis where there is a likelihood that the child may be removed without the other parent’s consent.

Remedies after the move

In the event that Rachel had moved to Paris, there are still options open to Ross that would allow him to seek the return of his daughter, Emma.

France (along with a significant number of other countries) is a signatory to the 1980 Hague Convention.

The Hague Convention exists to provide a remedy to ensure that children who are unlawfully removed or retained in a foreign jurisdiction are returned as quickly as possible. An application is made in the country in which the child has been removed or retained in.

When making an application for return, the applicant must prove the following:-

  1. The child has to have been “habitually resident” in the country from where they were taken. Whether a child is habitually resident will be very fact specific;
  2. The move/retention was in breach of the applicant’s rights of “custody” at the time. The concept of custody rights will be different in each country. In Scotland, we have a concept of parental rights and responsibilities;
  3. The Applicant was exercising their rights of “custody” at the time that the child was removed/retained

Defences

There are a number of defences that can be raised to oppose a return of a child being ordered:-

  1. The Child is now settled in the new country;
  2. The Applicant consented to the move;
  3. The Applicant parent acquiesced to the move/retention, and failed to seek a return timeously;
  4. The Applicant parent was not exercising their custody rights at the time;
  5. The child would be at a grave risk of physical or psychological harm if they were to be returned.
  6. The child objects to the return.

Thankfully, Rachel realises (in dramatic fashion!) that she does not want to move, and as avid viewers know, she got off the plane!

However, we cannot always rely on a faulty “left phalange” (sorry, you really need to watch the episode to get that reference) to stop a child being relocated without a parent’s consent, and if you are ever affected by a similar experience, you should consult a Family Law Solicitor at the earliest opportunity.

If you would like further information regarding the topics discussed in this blog, please contact:

Edward Fitzgerald by email: efitzgerald@gilsongray.co.uk  or by phone 0131 516 5354

You can also visit our Family Law Team page by clicking here.

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