Under English law, any person who has parental responsibility of a child, may not take that child to live outside of the jurisdiction of England and Wales, without the consent of any other person who has parental responsibility for that child. To remove a child out of the jurisdiction of England and Wales without that consent, may amount to the criminal offence of child abduction and there is also a strong possibility that the child would have to be returned to the jurisdiction, unless there were exceptional circumstances in place. Under the Hague Convention, a child can be returned to the country where that child was habitually resident, provided that the country to which the child was removed is a signatory to the Hague Convention.
Many parents are unaware of the law on this point. It can have significant repercussions for divorcing couples, particularly where one of the divorcing parties may not be English and may want to return to live in the country of their birth where they may have family. It may for example, be a mother who wishes to return to her country of origin. If that mother was someone who had stayed at home to look after the child whilst the husband worked on a full time basis, in the aftermath of a divorce, she may seek the father’s consent to her taking the child to live with her in her home country, where she would be closer to her family and support network. If the father does not agree, her only option is then to seek the court’s permission to make this move.
This involves a formal application, which is then inevitably followed by both parties setting out in full their evidence as to why (in the mother’s case) she believes it to be in the best interests of the child to go with her to live abroad and (in the father’s case) why he believes it to be in the best interests of the child to remain living in England. The overriding consideration of the court will be what would be in the child’s best interests. This can cover a wide range of areas, including:
- that child’s ability to maintain a good relationship with both parents
- the level to which they are settled and established in this country
- the opportunities that would be available to them if they were to move abroad and those that would be available to them if they were to remain here
- lifestyle considerations and economic considerations.
For the parent remaining resident in England, an application of this nature can be devastating, as they face the prospect of not seeing their child on a frequent and regular basis, their time being limited to a number of visits to and from a different country several times a year.
For the lawyers, this is one of the few areas of family law, where there is a win or lose result. There is no in between. The child will either remain here or be allowed to leave. For the parents everything rides on the outcome. These are challenging cases, but ultimately extremely rewarding, when a positive result is achieved for the client.