Earlier this week, Marilyn Stowe shared the story of a mother who had moved to a faraway country with her husband, an overseas national, and her young family, only to find herself “stuck” there after the marriage broke down. (The Expat’s Tale: “I’m a stuck mum”.) She is nearly at breaking point, having struggled unsuccessfully against that country’s legal system. In this follow-up post I intend to highlight some of the difficulties faced by expats who try to return to the UK with their children.
Browse expat forums, and you will discover that there are many “stuck parents”. It is sad to read that so many people now feel that they are “trapped” in a country where they do not wish to live. The alternative – moving back to the UK and leaving a child or children behind – is unthinkable for most parents. As a result, a parent can be left to grapple with life in a strange country, with no family to support them other than their former partner. The parent is left feeling lonely and isolated, which can in turn have a detrimental effect on the child.
When the court denies an application to leave, this is usually because the court believes that it would not be in the child’s best interest to relocate. The child’s welfare is of paramount consideration. However it seems nonsensical to think that it is in the child’s best interest to force a parent to leave the child behind or stay in a country to which the parent has no real attachment.
A note on emigration
When a couple decides to emigrate from the UK, little thought is given to what will happen if the relationship breaks down while they are living in another country. Many parents think that if their children were born in the UK that they will simply be able to return with them from Australia, New Zealand, USA and so on, but this is simply not the case. Sadly, a lot of parents find this out the hard way.
Many parents have new wills drafted before they emigrate, to state what will happen to the children if the parents die while the family is living in another country. So why do so few parents ask a family lawyer to draft an agreement about what should happen to the children if they split up? It is advisable to have, at the very least, a discussion about will would happen to the children in the event that the parents split up and one parent wants to return to the UK.
Obtaining the court’s permission
If a relationship breaks down and one parent wishes to return to the UK, that parent needs to have the other parent’s consent to take the child with them. If they do not have consent, they need the foreign court’s permission.
Obtaining the court’s permission is often a long and expensive process, with much emotional turmoil. Some parents spend tens of thousands of pounds in legal fees, fighting to be allowed to take children back to the UK with them. Having an agreement in place could, at the very least, minimise some of this. The parent who wishes to stay could still try and fight it, but if there was an agreement in place the relocating parent could have a stronger case.
The Hague Convention on Child Abduction
Many parents are tempted to return to the UK and “see what happens”. I can understand why parents might want to do this, but it is not a good idea. If the country from which the child has been removed is signed up to the Hague Convention, the parent left behind can make an application for the child to be returned.
Many of the countries to which Britons emigrate to are signed up to the Hague Convention, and a full list can be found here.
In these circumstances, the parent who has taken the child back to the UK will be treated as having abducted their child, because they have removed the child from the country in which the child is habitually resident. If a return is ordered though, it does not necessarily mean that the court is saying it is in the child’s best interest to live in that country. It means that the foreign country’s court has jurisdiction, and that the parent must secure permission to relocate from that court.
Under the Hague Convention, there are certain instances when the court does not need to order that the child is returned. These are as follows:
- If more than one year has passed since the child was removed from the country of habitual residence, and the child is settled in his or her new environment.
- If the other parent consented to the relocation or the court granted permission beforehand or afterwards.
- If “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.
- If “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views”.
Should a parent be faced with a Solomonic choice?
Certain countries are notoriously hard to relocate from. Take the recent case of B v K  NZCA 96. The court decided that the mother could not relocate from New Zealand to Australia because, due to the length of the litigation, shared parenting had been put in place and appeared to be working. The “risks associated with parental conflict or the risk that the mother might become isolated to the extent that it affects her ability to be a good parent” were not sufficient to justify what had become a “good working solution for the children”.
My thoughts on this are that if the mother becomes so isolated and unhappy that it affects her ability to be a good parent, the court’s decision would not be in the children’s best interests.
In the UK, the rules regarding relocation take into account the effect that not allowing the move will have on the parent, and the subsequent effect that upon the child’s wellbeing. To me, this is much more logical than simply ignoring the parent’s state of mind. If a parent is isolated, unhappy and has no support system in terms of family, the parent’s distress is likely to have an adverse effect on the child. Surely it cannot be in the child’s best interest if, in these circumstances, the court forbids the child and parent from returning to the UK.
The reader who contacted this blog and shared her story told of the Solomonic choice that she was forced to make:
In this country, the parent who wishes to relocate is first asked by the judge and also the court psychologist whether he/she will stay with the child if denied relocation, even when the reasons for wanting to return are good. An answer of “no” is often taken to be proof of a lack of care for the child, resulting in the child being handed over to the non-relocating parent.
This seems wholly unfair. The parent is faced with the terrible choice of being stuck in a country where they are unhappy, or returning to the UK without their child. It could also be argued that if the parent answered “yes” to this question, the court could infer that it would not be so terrible if they denied the parent permission to relocate. This puts the parent in a terrible position, pitched against a system against which they may feel that they cannot win.
The American case of re Marriage of Burgess (1996) 13 Cal.4th 25, which concerns the relocation of children, states that neither parent “should be confronted with Solomonic choices over custody of minor children”, and this is entirely correct in my view.
Coming next: what rules are applied to cases in which one parent wishes to move, with the child, to another country?
Laura Guillon is the principal trainee solicitor at Stowe Family Law, assisting the Senior Partner. Laura is half French and speaks French fluently. Her interest is in ancillary relief, particularly cases that have an international element.