In a recent proprietary estoppel case, Wills and another vs Sowray, the Court decided in favour of the friends of the deceased rather than his only child. Proprietary estoppel is...
Relocation with a child and international child abduction
Relocating with a child after separation or divorce
International travel often leads people from different countries to form relationships, marry and raise families. However, legal implications can arise if the relationship ends, minor children are involved, and one parent wishes to move to another country with the children.
Reasons for relocating might include wanting to return to a “home” country, improving finances through a reduced cost of living, accepting a job abroad, or living with a new partner.
Relocation is likely to prove stressful for both parents and, most importantly, the decision will affect the child. Legal advice should be obtained at an early stage on the matter.
The legal position
A parent can move abroad with their children if everyone with parental responsibility provides consent (generally the other parent). Without this, the children cannot be removed from the UK, as this would be child abduction – a criminal offence in the UK. The other parent may take appropriate legal steps to prevent an immediate move.
If permission to relocate is denied by the other parent, it’s necessary to apply for permission from the Court, known as “leave to remove”.
Beforehand, the parties must attempt to resolve the dispute through mediation. Our team of accredited mediators can assist throughout this process.
In the event that mediation is not successful, an application to Court is required.
The court’s primary consideration is the best interests of the child. The judge will examine:
- whether the application is genuinely motivated and doesn’t exclude the other parent from the child’s life;
- if the proposal is suitable, i.e. living arrangements, schooling, access;
- the impact on the parent applying if the application is refused;
- whether the other parent’s opposition is motivated by a genuine concern for the child’s welfare;
- the detriment to the other parent and their relationship with the child if the application is granted;
- the extent to which the detriment would be offset by development of the child’s relationships with extended family and homeland;
The court also considers the child’s age and current arrangements. If the child is old enough, the court will take their views into account but not be necessarily bound by them.
It’s essential to ascertain the legal position in the intended foreign jurisdiction regarding the recognition and enforcement of the English order and whether obtaining a mirror order is convenient.
The parent left behind may want to ensure that the English order can be easily enforced if required.
International child abduction
Child abduction occurs when a a child under 16 is removed from the country where they live without the permission of those with parental responsibility, or the court. Retaining the child in another country beyond any period agreed also constitutes wrongful retention.
Most commonly this occurs when one parent takes the child to another country without the other parent’s consent.
In many countries, child abduction is a criminal offence. In England and Wales, if a parent has a court order with a provision that the child lives with them (Child Arrangements Order), then they may take the child out of the UK for up to 28 days without the consent of anyone else who has Parental Responsibility for the child, unless there is an order in place expressly prohibiting this. However, if no such order is in place, it is a criminal offence to take the child out of the United Kingdom for any length of time without the written permission of all holders of parental responsibility or the Courts’ permission.
International legal instruments signed by many countries are intended to ensure the return of the child to their country of habitual residence before the abduction. The Hague Convention on Civil Aspects of Child Abduction 1980 is most commonly used, but between the EU members (excluding Denmark) Council Regulation (EC) NO 2201/2003 also applies.
If you have concerns about your child being abducted
You should seek legal advice from a specialist lawyer as soon as possible about measures that can be taken to prevent the abduction. An application can be made to the court for a Prohibited Steps Order to prevent the other parent from removing the child. Among other measures, it may be possible to make an application to the Tipstaff (the High Court Enforcement Officer) or to the police so that a “port alert” is put on all ports of entry and exit to the UK. You will have to prove that there is a real and imminent risk that the child will be removed.
Under English law, only people who hold parental responsibility over the child are entitled to apply for his or her return.
If your child has already been abducted
You should seek the advice from a specialist family lawyer as a matter of urgency. We will establish your parental rights towards the child and the most appropriate method to achieve the child’s return. It is also advisable to contact a lawyer from the state where you believe the child has been taken, in order to ascertain the legal position in that country.
If you are being accused of child abduction
It is very important that you are advised by a specialised lawyer. Taking further unilateral actions may worsen the situation. There may be grounds in your case to oppose the claims of abduction and it is essential that this is considered by an expert in the field. The limited grounds under which you can oppose a Hague Convention application for child abduction are:
- The other parent gave his or her consent to the child’s removal or retention.
- The parent left behind subsequent to the removal or retention has acquiesced (accepted).
- The child does not want to return, and they have attained the age and degree of maturity appropriate to have their decisions taken into account.
- There is no custody right being breached
- The other parent was not actually exercising their custodial rights
- The child is now settled in their new environment
- The child would be exposed to physical or psychological harm, or otherwise placed in an intolerable situation, if the child was made to return to the resident country.
These are not straightforward grounds and they have to be thoroughly proved to the Court charged with making the decision. Please note that the aim of Child Abduction proceedings is the return of the child to their country of residence, not to decide with whom the child is to live. This decision will have to be made by the country in which the child is habitually resident.