International divorce and child abduction – by Andrea Essen

Children|Divorce|September 18th 2009

child-abduction

Unless both parents consent to a child’s relocation from one country to another, such a move can be considered international child abduction.  But when a relationship ends, it is tempting to return home, to a safe environment. What if you live in another country and children are involved?

Within Europe there has been an increasing freedom of movement between countries.  Adults can move between countries and there are no restrictions on where they live and work.  Not so for children. The Hague Convention on the Civil Aspects of International Child Abduction makes provision for a child’s return to their country of habitual residence.  If you are going through an international divorce and you want to take your children with you when you leave a country, you need the other parent’s permission or an order of the court in the country where the children live.

A court order may be harder to get than you suspect.  Suppose you are English, married to a German spouse and living in Germany with two children. You split up and decide to move back to England with the children – but your ex doesn’t agree.  A court may not agree either and you need to be careful in what you do next.

Even a move to which both parents have consented can be full of pitfalls.  What happens if your ex agrees to your return to the UK, only to change their mind as you board the plane?  The English court had to consider this in one recent case (P-J (Children) [2009] EWCA Civ 588), in which an English mother tried to move to England from Spain following the breakdown of her marriage to a Spanish national.  In that case, the husband had said that she could take the children to England if a reconciliation failed, but had objected when she tried to do so.  The court returned the children to Spain and gave the following guidance:

  1. Consent must be clear and unequivocable, although it need not be specific as to timing.
  2. Consent must not be withdrawn prior to the removal and must be ongoing.
  3. Consent must be proved by the parent seeking to remove the children from the country.
  4. Consent must be viewed in the context of the family breakdown.

The lessons learned in that case demonstrate clearly that if you want to move children from one country to another, your actions must be above criticism.  If you get consent ensure that it is clear (and preferably in writing, in case it needs to be proven at a later date).  Make all your plans in an open manner, ensuring that the other parent has full knowledge of them.  Sneaking around guarantees that the court will be sceptical as to whether consent was continuing.

Finally, if you can’t get consent apply to the court in the country the children live in for permission before moving.  Make sure that you have all the details of the children’s proposed new home, school, doctors etc and ensure that you have thoroughly thought through your children’s needs and wishes. Put your children first and the court may well consider your application with favour.

The Hague Convention makes provision for the return of any child that has been abducted or allegedly abducted.  But this will involve hearings in both the country of origin and the country of destination.  It may involve the police and can be traumatic for the children.  Ultimately it is a path of last resort when there is no alternative left.

Don’t make the mistakes made by the mother in P-J, stealing your children from under your spouse’s nose. It only makes people suspicious of your motives and your choices – and any future application to court may well fail.

Author: Stowe Family Law

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