When someone (including a parent) removes a child from their country of habitual residence without proper consents or Court approval it may be an abduction. It is important to act promptly. The Hague Convention on the International Aspects of the Abduction of Children may apply.
You will need our advice if:
a) you wish to take your child to live abroad;
b) your child has been taken abroad without your consent, or is about to be; or
c) if you are facing a claim that you have abducted a child.
Explained: ‘Leave to remove’
‘Leave to remove’ is an application made by a parent to the court to remove their child from their current country.
For parents with sole responsibility of their child, where there is no disagreement with the party, there is no problem moving the child abroad. However, for parents with joint responsibility and joint interest in the children, it is essential that they communicate to reach an agreement regarding the possible relocation and on-going arrangements for the child. Ultimately, oral or preferably written consent must be obtained from the party remaining in the country where the child originally resided (often referred to as the “left-behind parent”).
In an ideal world, conversations between parties would be smooth, the relationship amicable and an appropriate agreement reached. However, it is often the case that one parent disputes the idea of their children moving overseas and withholds their consent. The reason is usually the loss of contact with the left-behind parent. This is not fanciful; many studies have shown that without clear practical arrangements being established from the start, contact often falls away quickly.
If the dispute did escalate and was taken to Court, the person seeking to relocate would need to provide legitimate reasons as to why they wanted the child to be taken abroad; and for the parent at risk of being “left-behind”, why the child should stay put. The Court will base its decision on the best interests of the child. The strength of feeling of the parent wanting to “go home” is not necessarily a guide to what is best for the child, although it can be.
To properly understand your legal rights, discuss your situation with a solicitor with knowledge and familiarity with issues regarding relocation, and can advise you of the best way to pursue your case, both for your good and the good of your child.
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International Abduction - Scenario Analysis Example #1
Mrs D had been living in Australia. She was English. Mr D was Australian and they had a three year old daughter. They agreed that their marriage had ended. She moved out with their daughter into temporary accommodation. Mrs D said she would go back to England and her husband agreed and he sent her belongings. Three months after she arrived back in England with their daughter her husband claimed in a lawyer’s letter that he had never agreed to their daughter leaving and that Mrs D was guilty of abduction. They spoke of starting proceedings with the Family Court.
We took instructions and consulted a specialist barrister. We decided that the solution was to put up a strong counter-argument and “call his bluff”. Meanwhile we would explore a possible financial settlement which might confirm that her husband now accepted that their daughter should stay in England and preferably would settle all the issues by agreement.
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