If a couple separate or divorce they may be able to agree between them the arrangements for the children. If they can’t the English Courts can decide who a child is to live with and the time s/he spends with the other parent. These used be called Residence Orders and Contact Orders (and before that Custody Orders). They are now called Child Arrangement Orders. If there are to be Court proceedings, this will culminate with an Order setting out the amount of time a child spends with each parent.
But what then happens if the parent with whom the child lives wants to move to another country?
This can arise if that parent is from another country and wants to return home to their family. This decision can be made by agreement between the parents. If it is not agreed, the Court will have to decide.
If the Court grants, say, Mother permission to leave the country what happens to the previous Order which provided an amount of time for the child to spend with Father.
It will be important for Father, at the time the Court is deciding whether or not Mother is to be given permission to leave the country to obtain a new Order (which would replace the previous Order) with the time the child spends with him reflecting where the child is now living. Arrangements would need to change if the child is now thousands of miles away. It can, for example, be more time during the holidays and less time during term time.
Can the Father rely on the Order made by the English Court providing for the time the child is to spend with him?
Many parents have heard of the Hague Convention. Many countries are signatories to the Hague Convention, which provides for the recognition of Court Orders in countries who are parties to it. For example, Belgium has been a signatory to the Hague Convention since May 1999. If Mother relocates to Belgium and does not comply with the English Court’s Order for the time the child is to spend with Father he can apply to the Belgian Court, under the Hague Convention, and can apply to enforce the English Court Order. However, the jurisdiction to decide this rests with the Court in Belgium. At that point, Father will need to instruct a Belgian lawyer to obtain advice on how this application to enforce his English Order will be dealt with. This will be dealt with in accordance with the law and approach to applications in Belgium.
The situation may arise the other way around. The children may live with Father and he may obtain a Court Order from another country, for example, Sweden, to relocate to England with the child. This assumes that Mother has a Court Order in the Swedish Court setting out the time the child is to spend with her. Can she enforce this in England?
Mother can make an application, under the Hague Convention to enforce her Swedish Court Order, but the English Court have jurisdiction on the outcome. If the Order in the Swedish Court was made at the same time as Father was given permission to relocate to England, provision for contact will reflect that Father will be living in England and the significant distance and time in travel involved between the countries. The English Court will make the final decision but will take into consideration the Swedish Court and consider if that was an appropriate Order.
If however, the Order in the Swedish Court for the time the child should spend with Mother was made before the Swedish Court dealt with Father’s application to move to England, it will not have been made on the basis that the parents would be living thousands of miles apart. In that case, the detailed provisions of the Order for contact are unlikely to be able to apply in England because of the practical differences in the parents’ location from when they were both living in Sweden. In that case, Mother will have to apply to vary the Swedish Court Order. The Application will be issued in the High Court under the Hague Convention, but is likely to be moved to a Court local to the child’s home for determination by the English Court. If any parent is in a situation where their child may be moving with the other parent to a different country, it would be worth obtaining advice as early as possible on the arrangements for contact after the move.