August 4 , 2014
Source: separated dads
The modern world is getting smaller, with more and more people living and working abroad.
It’s no surprise that the number of international families is on the increase but what happens to the kids when these relationships break down and the mother wishes to return to their home country with the child? What rights does the father have?
If both parents have parental responsibility for a child it is a criminal offence in the UK to emigrate with a child without the permission of the other parent or without an order of the Court. Parents have Parental Responsibility for children in the following circumstances:
- The Mother – always has PR
- The Father – if he was married to the Mother, or if he was named on the birth certificate and the child was born after 1st December 2003 or if there is a PR agreement stamped by the Court
There are 4 outcomes if one parent wants to take the child abroad to live permanently:-
- Permission refused by the Court and the Mother abandons her plans or the child moves to live with the Father
- The Mother and child emigrate with the Father’sagreement
- Lawful removal of the child by the Mother
- Unlawful removal of the child by the Mother
Outcome 1 is self-explanatory but let’s looks at the other 3 outcomes in more detail:
Outcome 2 – Emigrate with Father’s Agreement
Where the parents reach an agreement which permits one parent to move abroad with the child whist ensuring that they maintain a good relationship with the other parent. International travel is much cheaper and often parents agree a schedule of annual contact involving return trips to the UK in the school holidays and weekends and visits by the non-resident parent to the child’s new home. Other forms of contact can be agreed upon such as Skype, telephone, email and Face time.
In these circumstances it is always wise to apply to the Court to request an order in the agreed terms to prevent any problems further down the line. A court order may also be required by the immigration authorities if the proposed move is by a non-national who requires a Visa. Depending upon the Country where the child is going to be residing, it may be necessary to obtain a mirror order in the new state reflecting the terms of the English Court order. You cannot assume that Court Orders made here are enforceable abroad. If the move is to an EU country the order would be directly enforceable but unless the English court order expressly retains jurisdiction, it will pass to the new state after 3 months and in theory an application could be made in the new state to vary the agreed terms. If the new home is a signatory to the Hague Convention, the Central Authority in London can assist in enforcing a contact order abroad. If the new home is outside the EU and is not a signatory to the Hague Convention, for example Arab States and the Far East, retaining jurisdiction here or obtaining a mirror order is the best form of protection.
Outcome 3 – Lawful Removal of Child
Where parents cannot agree it is necessary for the parent wishing to remove the child to apply to the Court for permission to do so. If permission is granted, contact will also be ordered. This will then result in the lawful removal of the child. Depending on the child’s destination and whether that country would enforce the English Court order (as in EU Countries) it may be necessary to obtain a mirror order in the new home country to ensure contact is maintained. See above ” 2 .Agreement”
Outcome 4 – Unlawful Removal of Child
Where parents cannot agree and the parent wishing to leave simply takes the child without permission, this is parental child abduction. It is a criminal offence to remove a child from the UK without the permission of the other parent or order of the court (save for where the parent has a residence order and removal is for less than 28 days). If you suspect that your child has been taken abroad you will need to access specialist legal advice immediately. In some cases it is possible to stop a child leaving the country by notifying the ports and airports who will place the child’s details on a watch list. If the child has already left the UK, a lot will depend upon where they have gone and whether that country has an agreement with the UK to return wrongfully removed children. There are unfortunately circumstances where children are not returned which could result in the child losing its relationship with the other parent.
If you are separated from your child’s mother and these issues arise for you it is important that you obtain specialist advice from a family lawyer with an international background which will enable you to consider the best way forward for you and for your child to ensure your relationship is maintained.
About the Author
This was a guest post written by Louise Halford, a family law Partner at Pannone LLP who specialises in child abduction.
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