EXCLUSIVE: Essential Reading As Number Of Global Family Disputes Soars

Emily Brand

Winckworth Sherwood

8 May 2013

Emily Brand, partner in the private client practice of law firm Winckworth Sherwood, flags up possible problems which could face those who start a family abroad.

The latest figures released in the annual report of the Office of the Head of International Family Justice for England and Wales reveal a staggering 40 per cent increase in the number of international family disputes handled by the Office in the last year.

The statistics reflect problems that can arise from the ever-increasing mobility of individuals who form relationships across countries through their work or the borderless internet.

Although love conquers all, one eye should be kept on the upsides or downsides of the law of the jurisdiction in which you live as this may have devastating consequences if your relationship breaks down, particularly if there are children involved.

The hardest part for most couples breaking up is agreeing the arrangements for the children. These difficulties can be compounded when there is no agreement as to their future location, where children are schooled overseas or when a family has to relocate through work. It is entirely natural and often the case that one or other parent will want to return to their home country for the additional emotional support they will receive from family and old friends once they have lost the security of their relationship. Added to this may be the wish to reconnect with their cultural roots, and financial and employment considerations. But the departure of the children to another country may be devastating for the parent left behind.

Sad situations

In the UK a child can only be lawfully relocated to another country where there is no order, such as a residence order, that prevents the child from being removed and where the remaining parent has consented to the relocation. If one parent is acting unilaterally, it is unlikely that they can legally arrange for a child to be removed from the UK.

In the absence of agreement, the parent wishing to relocate can make an application to the court for leave to remove a child from the jurisdiction. The final decision made by the court will often depend on whether the application for leave is made by a parent who is the primary carer of the child or whether the parents can be said to share care. It is a sad irony that the harder you may be working to generate income for your family, the higher the chances are that your absence will count against you if it comes to a fight about where the children will live.

One of the most terrifying and distressing consequences of relationship breakdown can be child abduction.

The UK is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction along with over 50 other nations. This convention dictates that disputes over the relocation of children should be dealt with in the country where the child is habitually resident, i.e. where it lives normally and is settled. Thus, a signatory state should return an abducted child to its habitual residence.

However, even if a country is a member of the Hague Convention, that does not always mean an immediate return of the abducted child and litigation can be protracted during which one parent may not see his or her child for many months. If the country is not a signatory to the Hague Convention, then the chances of finding the child, let alone securing his or her return without the abducting parent’s consent, can be slim.

Prevention

Preventative measures are the key. If there is a risk that a child may be illegally removed, then the first step is to obtain an order from the Court prohibiting the child’s removal from the jurisdiction pending a resolution to any disputes as to where and with whom they will live. A tight hold should also be kept on the children’s passports, although beware as some countries will issue new passports for children without both parents’ consent. Post separation, it is important to be alive to any comments made by the children that seem unusual or may involve travel plans of which you are not aware. If a child is not returned home in breach of an agreement and you suspect abduction is imminent, immediate action should be taken to obtain a Port Alert. This will ensure that the child’s name and details are circulated on a “stop list” at all airports and ferry ports.

Serious thought also needs to be given if you are planning a move abroad with children. There are many parents who are left languishing in a foreign country, not speaking the language, waiting to return home or being refused the right to return home with their children because the Court where their children are found to be habitually resident does not consider it appropriate for them to leave.

There are also cases where parents are separated from their children and lose contact for years. If the relationship is potentially unstable, it is imperative to ensure that the children are residing in a jurisdiction where you would feel comfortable and in control if there is a dispute between you and your former spouse. Your children’s future may be determined on the basis of cultural values that are completely alien to you.

Love may be blind, but if the scales do ever fall from your eyes, seek early and accurate advice about your possible options, not only in the jurisdiction where you are living but in any other jurisdiction with which you may have an ongoing connection. The consequence of that advice may protect you and your family in ways you may not anticipate.