There are many reasons why you may wish to move abroad following your divorce. You might simply want to return to your home country to start afresh after the breakdown of your marriage or you may be seeking new career opportunities. Perhaps you’ve met a new partner who lives abroad. On occasion a divorced spouse might believe it is in his or her best interests to put some distance between themselves and a former spouse.
However, when there are children involved – and you wish to bring them with you – there are sensitive legal issues to consider. This is particularly the case if your former spouse does not agree to you moving abroad with your children. In this type of ‘international relocation’ case it’s critical to get legal advice from a family law solicitor at an early stage. Taking your child abroad without the prior agreement of the court or of your estranged spouse could be viewed as child abduction.
Getting Agreement To Relocate Overseas With Your Children
If you want to relocate permanently to another country with your children you need to get the consent of the other parent and anyone with parental responsibility for the child. Unsurprisingly, here at Brookman most of the parents who come to see us about relocating with their children do so because the agreement of a former spouse or partner is not forthcoming. We can try to encourage agreement through informal discussion and mediation in collaboration with your ex’s lawyers. Ultimately if agreement can’t be reached, you’ll have to ask the courts to decide whether you can move abroad with your children.
We’ve previously explored how the courts in England and Wales reach decisions about international child residence, and how each decision will be based primarily on what is in the best interests of the child. But what if children are taken abroad before an agreement between the parents or before a court makes a ruling?
Can I Take My Children Abroad Without My Ex’s Consent?
We regularly deal with cases where a spouse has decided to remove the children from England and Wales to another country without the consent of the other parent and in the absence of any court order. Acting in this manner in legal terms amounts to child abduction. It can result in criminal charges and is likely to have a long term bearing on any future application the abducting parent makes for child residence or contact.
These cases are regulated by complex rules and procedures. We look at some of the things you need to consider below and touch on how Brexit impacted child abduction cases within the EU. Our solicitors have experience in acting for a parent who has moved abroad with the children without prior agreement as well as for parents seeking the return of abducted children to the UK.
International Child Relocation And The Hague Conventions
101 countries are signed up to the 1980 Hague Convention that aims to prevent the harm caused by international child abduction. It encourages co-operation between contracting States and includes a clear procedure for the quick return of children to their country of habitual residence. The 1996 Convention covers areas such as recognition of foreign judgments and enforcement, broadening the scope of the international child protection regime.
The Supreme Court has stated in a 2011 child abduction case that the main purpose of the 1980 Hague Convention is to:
deter either parent from taking the law into their own hands and pre-empting the result of any dispute between them about the future upbringing of their children…
In the same case the Court went on to say that once an abduction has occurred the courts objective is to return the children as soon as possible to their home country, so that any dispute can be determined there.
To bring a successful Hague Convention case the parent seeking the return of a child to the UK must establish:
- That the child was habitually resident in the UK and was wrongfully removed to another Convention country (‘wrongful’ means the removal breached the custody rights the parent seeking return had over the child).
- The Convention had been confirmed between both relevant countries when the wrongful removal occurred
- That the child is under 16
There are a number of ways a parent can defend removal of the child, including:
- Where he or she can show there is a ‘grave risk’ that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation
- Where the child objects to the return
- Where the child has become settled in the new country due to the passage of time (usually a year)
It’s worth noting that the way these defences are applied will vary from country to country. Judges do however generally apply them narrowly and strictly – reflecting a reluctance to give any advantage to an abducting parent.
Child Abduction in the EU After Brexit
Before 31 December 2020 (the Brexit transition date) parents involved in relocation/abduction cases could also rely on the EU’s Brussels IIA legislation. For cases started after the Brexit transition date parents have recourse only to the Hague Conventions. Commentators suggest that the EU legislation contains slightly more robust mechanisms for dealing with abduction cases than the Hague Conventions. For example:
- Under the Hague Convention cases may take longer. Brussels IIA required cases to be decided within six weeks. There’s no similar time frame in the Hague Convention
- Under Brussels IIA a parent who failed first tome to secure the return of a child could attempt to do so a second time. This second attempt is not available to parents in UK/EU abduction cases after 31 Dec 2020
If you are concerned about removal of a child from the UK following your divorce you should seek urgent advice. At Brookman we will always try to find some area of agreement between you and the other parent before taking any proceedings. To discuss how we can help please call us on 44 (0) 20 7430 8470 or contact us online. We provide a free, initial consultation.