International child relocation
International relocation of children
International divorce – moving children abroad
One of the most emotionally fraught situations arising from divorce or separation is international child relocation – when one parent wants to move abroad with their children, perhaps to pursue a career opportunity, new relationship or to return their country of birth. This article explains some of the legal considerations surrounding this delicate issue. Any parent facing a request for their children to be moved to a different country should seek professional legal advice from an international divorce and family law, specialist at an early stage.
Parental consent to relocation
Where a child is habitually resident in England and Wales, if one parent with parental responsibility for a child wishes to remove a child from the jurisdiction, they will need the consent of anyone else with parental responsibility. Where the move is permanent, it will be necessary to make an application to the Court for ‘leave to remove’ the child.
The Court needs to consider every such application for international relocation very carefully, and it needs to take into account a number of factors. One of the most important considerations is how the child’s relationship with the parent left behind will be maintained. A parent may consent to their child moving abroad on the condition that certain arrangements in terms of residence/ custody and contact/ visitation, are put in place and a Court Order made approving those arrangements. A parent wishing to remove their child is likely to agree to the terms sought in order to secure the necessary permission for the move, but what happens if the agreement for contact or visitation breaks down after the move has taken place?
Many countries in Europe and elsewhere have signed up to agreements which require them to enforce orders made in other countries, but for those that have not signed up to the agreement, there may be no automatic recognition or enforcement of the original order. The court therefore needs to consider various safeguards at the outset to prevent the contact or visitation arrangements breaking down.
One such safeguard is a ‘mirror order’. This is an order in the country the child is moving to, that reflects the Order made in the country the child has just left. A mirror order lets the court in another country know that a court order has been made in relation to the relocation and the conditions on which the consent was given. However, mirror orders are not without their difficulties, including differences between foreign laws in relation to recognition and enforcement, so careful and considered advice is needed from a specialist lawyer, both in the country being left and the country to which the party is relocating to avoid the pitfalls.
The position after Brexit and whether the UK’s departure from the EU will result in any changes to the law in this area is not clear at present, so advice will need to be sought to ensure the maximum protection is put in place to cover a variety of different scenarios. The legal uncertainty over the UK’s future relationship with the EU makes mirror orders even more important than ever.
When parental consent is not given
But what happens if the negotiations between the parent remaining in the first country and the leaving parent break down? If no agreement is reached before the move, the leaving parent may be prevented from taking the children abroad, as he or she will need the consent of the other parent.
If the children are taken without the other parent’s consent then, assuming the move is to a country within the EU or which is a signatory to the Hague Convention on the Civil Aspects of International Abduction, the parent staying behind can apply for the children to be returned to the country where they were last resident.
Parental consent can be conditional
If the move goes ahead whilst the negotiations about visitation are ongoing, the parent staying behind may still be able to demonstrate that the move was undertaken without his or her consent.
In a recent case, a mother took the children from Canada (where they had been living with both parents) to England without the father’s consent. The father indicated that he would apply to the court for a return of the children to Canada, but subsequently agreed with the mother that provided the arrangements for the children could be agreed, then he would consent to the children living in England. Two months later, the arrangements had not been agreed and the father applied for the children to be returned to Canada. The mother objected to the return and argued that the father had consented to the children living in England.
The Court held that the mother could not rely on the father’s consent. The father had been very clear that his consent was contingent upon the parties reaching an agreement on contact, which had not happened. The mother had known this was the case, and at no time had she been told that the children could remain in England if no agreement was reached.
This decision demonstrates that it may be possible for one party to consent to a move, but to make that consent conditional upon suitable arrangements for the children being put in place. The intention and conditions should be clearly recorded in any documents or communications relating to the move. The wording would need to be carefully considered and drafted to ensure that the conditional nature of the consent is clearly stated and that no concessions are inadvertently given.
Moving a child abroad without permission
When one parent removes a child without the permission of the other parent or Court, this could amount to international child abduction and, depending on the country to which the child is taken, may be subject to the international laws (known as the Hague Convention) relating to the return of the child.
There is no doubt that cases of international child abduction and leave to remove applications are extremely sensitive and need careful and experienced handling by a specialist practitioner. It is essential that any parent considering an application to move a child across international borders does so in the knowledge of the correct law and procedure, and with the understanding of all the aspects and details which will need to be carefully considered.
In cases where a child is sufficiently mature to provide a Court with clear reasons for their wishes and feelings, parents need to take advice on how the child’s views can best be presented to the Court. In some cases, this will involve the child having independent legal representation, and this is something which should be discussed with legal advisers at the outset.
Given the specialist nature of this area of law it is essential that any parent contemplating an international relocation with their children, or any parent facing a request for their children to be moved to a different country, seeks the advice of an international family law specialist at an early stage in the process.
Your key contacts
Rayner advises on the issues that arise for an individual following the breakdown of a relationship in relation to divorce/civil partnership dissolution, their financial affairs and their children.View profile >
Gareth Schofield is a partner in Clarke Willmott solicitors' Bristol Family team specialising in divorce settlements and cohabitation disputes.View profile >
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