Can Family Law Stop Me from Relocating Overseas with My Child?
Relocating to another country with a child/children is a serious decision requiring many factors to be weighed up. However, people often fail to consider that they’ll need the consent of the other parent or the Court if there’s a disagreement on the move. If you ignore the rules, you could find that you have breached international law and be accused of child abduction.
For initial advice get in touch with our Family Law Solicitors who specialise in child law.
What is the Hague Convention and Does it Work in Britain?
The country where your child normally lives is their country of habitual residency and the Court in that country will have “legal jurisdiction”. If you remove your child from their country of habitual residency without the consent of an authorised person - normally the other parent- this may be treated as child abduction under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention).
Furthermore, removing a child from Britain is additionally a criminal offence under the Child Abduction Act 1984, which may be punished by a fine or imprisonment for up to seven years. Similar rules may also be established abroad.
At present, the treaty has 99 signatories which includes the UK and all the European Union countries. In the UK, most applications are dealt with by the England and Wales International Child Abduction and Contact Unit (ICACU). The Hague Convention regime also applies in reverse when both parents and the child are British citizens and one of them wishes to return to the UK with the child.
What if a Parent Moves Abroad with a Child without Consent?
Both EU law and the Hague Convention disregards the issue of nationality, focusing instead on where the child lives. The parent whose child was wrongfully removed or retained in another member state can make an application for the child to be returned “home”.
Once the application is filed to a Central Authority, measures can be taken to secure the voluntary return of the child. In England and Wales, this may involve a High Court Order which can be made to discover the whereabouts of a child, seize passports and ID cards or stop the child at the border to avoid further removal.
Return is the first step after unlawful removal. The Courts of the other country can then decide on the child’s long-term future. This means that a child can’t be abducted to another country and then ask the Family Court for an Order to approve it.
Making an Application if a Child was Wrongfully Removed
The application under the Hague Convention must be made without delay. It’s advisable to apply as soon as you’re certain that the other parent didn’t come back to the country, or left with the child and refuses to confirm when they’re coming back.
If the application for the child’s return is made after a year from the date of the abduction or retention, the child may not be returned if it’s demonstrated that the child is now settled in their new environment. Time is therefore of the essence.
Can a Parent Defend the Application to Return the Child?
There aren’t many defences available. However, there is a possibility for the Court not to order the child’s return in the following situations:
- The applicant didn’t have custody rights at the time of removal
- There was consent to the removal or retention
- There is a grave risk of harm to the child
- If the child objects and has maturity for their views to be taken into account.
Does it Have to Get Legal?
Moving a child outside of the UK is a crucial decision in the child’s life and reasonable attempts should be made to agree it with the other parent first. A parent can give permission to relocate in any form, orally or in writing, even by email or text message.
You should, however, bear in mind that permission given orally may be extremely difficult to prove. Valid consent is a potential defence under the Hague Convention and obtaining it will save you a lot of trouble, stress, time and potentially high legal fees.
If you’re able to agree, it’s best to confirm that in writing to avoid uncertainty. This can be in the form of an agreed Court Order if necessary.
You should be prepared to justify why a move is in the child’s best interest. Is there a realistic plan for the move? What are the costs involved? How will you ensure future contact with the other parent? Having a plan should help the other parent accept the move and assist with making the transition for the child as smooth as possible.
This will also be required in the Court proceedings in case the negotiations fail. You may find it helpful to contact a family mediator to attempt family mediation.
What if You Can’t Agree?
There are three options if you can’t come to an agreement on relocating with a child.
- A parent wanting to remove the child may apply to the Family Court for a Specific Issues Order for permission to remove the child
- A parent fearing the risk of removal can apply to the Family Court for a Prohibited Steps Order
- Emergency applications can also be made to the High Court to discover the whereabouts of a child or seize passports and ID cards or issue a port alert to stop a child from leaving the country
You should always seek legal advice to confirm your rights and how you can effectively remove the child from a country or prevent an unlawful removal. Our Family Law Solicitors can assist you with your issue and try to resolve it as amicably as possible.
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