Leave to remove and the vexed question of jurisdiction. By Jennifer Hollyer

Children|November 12th 2010

I read Marilyn Stowe’s recent post with interest, as I have come across or worked on a number of cases in which one parent wanted to move abroad and the other battled with the idea of being left behind. The remaining parent often struggles to maintain a relationship with their children and any arrangements can become even more difficult if legal wrangling ensues.

As you’d expect these types of cases are extremely complex and often charged with raw emotion. As Marilyn’s post emphasises, there are a number of difficulties and complications that removal from jurisdiction presents.

If it is established, either by agreement or by court order, that it would be in the children’s best interests to move abroad then there obviously have to be arrangements in place for them to continue their relationship with the parent that is left behind. After all, it is a vital right of any child to have a relationship with both their parents.

But what happens if the arrangements turn sour? Which country’s judiciary makes the decision as to what should happen next?

The question of jurisdiction

The question of jurisdiction in international children law is one of the most crucial, and the outcome of a case can hinge on where it is heard. Both parents will want their case to be heard in the country in which they reside, regardless of whether it is fair on the other parent or not.

These fundamental issues formed the basis of the recent case AP v TD (2010 EWHC 2040). It involved two children aged five and eight-years-old. In October 2008, after full consideration as to the best interests of the children, the father reluctantly agreed to let the mother move to Canada with them.

The agreement was subject to certain conditions, namely that there would be weekly webcam and unlimited telephone contact, that the mother would provide the father with all of the relevant contact details for any schools, nurseries, GPs and hospital consultants caring for the children, and that the children’s names would not change. It was also agreed that any future disputes over contact should be resolved in the UK and that the mother would return here for any such hearings. Furthermore, it was ordered that if the mother was ever unable to care for the children they would be returned to the UK to live with their father. Holiday and staying contact between the children and the father was also determined.

Unfortunately the arrangements were not adhered to once the children moved to Canada, with each parent blaming the other for various reasons.

The mother then unilaterally, and without notice to the father, applied in the Canadian courts to vary the contact arrangements and successfully obtained an order. The father, somewhat understandably, felt what had happened to be unfair and subsequently applied to an English court for the original order to be enforced. The father also asked the court to order the return of the children to England and for a Residence Order to be granted in his favour due to their mother’s obstructive actions.

Brussels II and settling jurisdiction

The judgment was handed down by Mrs Justice Parker in the High Court and determined which country’s judiciary should decide the outstanding issues. In reaching a decision the judgement looked at a European regulation commonly referred to as Brussels II, and the legislation in England and Wales regarding family cases and jurisdiction.

Article 8 of Brussels II permits a court to deal with a case if the children live in the same country. However, Article 9 of the same regulation allows for the original court (being the English court in this case) to hear an application within three months of the children relocating. It seemed on the face of it that the Canadian court had jurisdiction and could rightly issue a new court order.

However, it gets more complicated. Article 12 of the same regulation states that “if the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner at the time it is first seised” and that if the jurisdiction of that court “is in the best interest of the child” then it should hear the case.

It was considered that the mother had in fact accepted that the English courts had jurisdiction when she agreed to the original order. Mrs Justice Parker stated that “both parents unequivocally and expressly accepted the jurisdiction of the court in respect of contact when the orders of the District Judge were made. They unequivocally accepted that it should endure”. Amongst other things, this was illustrated by the provision that any future disputes over contact should be resolved in the UK and that the mother would agree to return to the UK for any such hearings.

The judge also stated that once the jurisdiction “has been established under Article 12 (3), it cannot be terminated by the decision of another country”. The judgment went on to say that the mother could not withdraw her acceptance that the English court has jurisdiction, simply by virtue of the fact that she had issued fresh proceedings in another country. And fundamentally, the judge felt that hearing the case regarding contact in an English court was in the children’s best interests.

The court then turned to the father’s requests that the children be returned to the UK and live with him. The court interpreted the Children Act 1989 at section 10(i)(b) to mean that if the court has the power to determine issues of contact, then it would also have jurisdiction to determine other issues regarding parental responsibility – including residence. Despite that, the father had not made a formal application for residence and so the issue could not be determined until he had. On that basis, and although it may have been in the best interests of the children to determine this issue in England now, it was decided that may not be the case in the future. It was considered that this was something they would have to return to if the father made an application.

All is not lost

Popular conception seems to suggest that these cases must be heard in the country in which the children concerned live. This case is an example that, if circumstances permit, a case can be heard in the country which was left behind. This is certainly important news for any parent who is striving to maintain a relationship with children who live abroad.

I would advise that any parent left behind should reevaluate the situation if they feel that their children are slowly slipping away from them. It may be that something can be done to improve it. Parents who face these challenges should seek advice to see whether their case could be heard in the UK. All is certainly not lost if your children move abroad.

A University of Sheffield graduate in European, International and Comparative Law, Jennifer spent a period of time studying Finnish law at the University of Helsinki in Finland while completing her degree. She joined Stowe Family Law in July 2008 as a trainee solicitor. Now qualified, Jennifer plays a vital role in the children law and domestic violence department, assisting Head of Department Stephen Hopwood.

Jennifer has experience in most areas of family law, in particular with cases involving children disputes (including international children disputes) and/or domestic violence.

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  1. Danny says:

    I am an Indian national who has been given leave to continue to remain in the UK under special circumstances so i can be close to and a father to my daughters after over a year long battle in the family courts here, which my ex wife initiated after we arrived here in the UK from Dubai – my final court order recently received states that i have 3 hours once a week from school mid week contact, in addition to 3 week ends a month. 2 of these week ends are from Friday 3.30/4.00pm through to Sunday 6.30pm,
    One week end is Friday 3.30 pm through to Saturday 6.30 and the last week end of every month they spend with their mother.
    i also get to speak to them every Thursday.

    In addition to all this i also get a pretty even split of holidays and special days as well – My daughters will be 5 years old soon.

    They sometimes do not want to go back to their mothers house and ask to stay with me. Its heart breaking to have to walk away from them every time when they don’t want to go.
    The mother has her entire family here in the local vicinity and they have done everything possible to try and keep me from my daughters.
    The fact that she has a sister that works in social services does nothing to alleviate my concerns..

    What is of further worry is that another sister of hers is a US National/citizen and currently resides in Miami – Florida.

    I know for a fact that my ex wife wants to settle in the USA because she had made mention of this numerous times when we were still a family.

    There’s actually a clause in the final contact order that states she should promote the fact that my kids have 2 homes and not just “the one with her and a sleep over at daddy’s” she still does it though and my kids still ask me if its a sleep over day when they come round.

    My latest uphill climb here is her refusal to give me the details of where my daughters will be attending main stream school which commences in September this year =This is despite repeated verbal and text requests as well as a solicitors letter.

    Thank you for reading this

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